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$1.8 Million Fee Award Shows Trend Toward Using Awards to Deter Litigation Hijinks

November 20, 2015

​When it comes to court cases involving copyright infringement issues, it’s not just what you do; it’s how you do it.

On November 13, the U.S. District Court for the Eastern District of Virginia awarded $1.8 million in attorneys’ fees to defendants in a copyright infringement case because the plaintiff had tried to force a settlement by demanding extraordinarily high damages, the Bloomberg BNA Patent, Trademark & Copyright Journal reported.

Laurence Pulgram, partner in Fenwick's litigation group, spoke with Bloomberg BNA about the ruling and its impact. “The lesson to copyright counsel is clear. Inflate your damage demand as you may be inflating your liability for attorneys’ fee along with it.”

According to the court ruling, “There is some indication that plaintiff brought this lawsuit in an effort to extract money through a settlement rather than protecting its purported copyright.”

The case involved the construction of a high-rise building in the suburbs of Washington, DC, the design of which was similar to a complex built several years earlier in Minneapolis, Bloomberg BNA noted. The plaintiff demanded $260 million in wrongful profits; actual damages amounted to $400 million. Besides demanding very high damages, the plaintiff also brought suit against multiple defendants, complicating the case.

Pulgram said the court took note of the plaintiff’s litigation tactics, even though it did not find the plaintiff’s case itself to have been unreasonable.

“The court essentially said that tactics matter as much as the merits do,” Pulgram said. “The decision follows a line of cases that increasingly suggests that defendants who win in copyright cases should generally recover attorneys’ fees since there is nothing else for them to win that would deter prosecution of weak cases.”

The decision should work to discourage high-pressure tactics aimed at forcing settlements.

The full article is available through the Bloomberg BNA Patent, Trademark & Copyright Journal (subscription required).​