defendants get fees in California right of publicity case

Yeager v. Bowlin, 2010 WL 2303273 (E.D. Cal.)

Defendants, involved in autograph-related trademark/right of publicity litigation with Chuck Yeager, prevailed on summary judgment and sought fees under the Lanham Act and California Civil Code § 3344(a). Under the latter, the prevailing party is entitled to attorney’s fees; the court did not separately analyze entitlement to fees under the Lanham Act, but proceeded as if defendants were also so entitled. “[U]nder California law a prevailing party may recover attorney’s fees on a claim for which attorney’s fees are not available if it occurs in a case where a statutory claim that allows for fees is present and the claims are so interrelated that a separate accounting for them is impossible,” and that was the case here. “The issues in this action were so intertwined that apportionment between the claims would be nearly impossible. Plaintiffs’ claims all related to the same set of facts--namely that defendants allegedly used Yeager’s name and likeliness without his permission.” (This might not always be true for all the claims of this type, and here there were a smorgasbord, but Yeager alleged that his consent to the use of his name etc. was procured through fraud, so all the claims were dependent on fraud.)

A reasonable rate is the prevailing market rate in the community for similar work performed by comparable attorneys. The attorneys sought $400-$135/hour for various attorneys and paralegals, with supporting declarations averring that, for complex right of publicity/Lanham Act cases such as this one, this was reasonble/at the lower end of the market rate. Though judges in the district regularly have found $250/hour to be reasonable for experienced attorneys, the court found the cited cases inapposite: “Unlike those cases, which involved relatively simple civil rights or Americans with Disabilities Act claims, litigation of this action required specialized knowledge of the complexities of intellectual property law in a suit involving a high profile plaintiff. Defendants' counsel may accordingly be entitled to higher hourly compensation than attorneys who litigate cases that do not require such special skill or expertise.”

Comment: as I recall, civil rights and ADA claims have the same fractal complexity found in many areas of the law. The rationale coming next, that the market will bear different prices (in part based on fee-shifting provisions in the governing statutes) for different substantive areas makes sense. But let’s not get our heads too puffed about how hard our jobs are versus those of other lawyers.

So: the cited cases mostly involved attorneys entitled to collect fees from the opposing party, but who had contingency fee agreements with their clients. So in those cases it’s hard to say that the proposed hourly rate is the actual fee the client would pay, but here the client did pay it willingly before prevailing, which gives greater credibility to the representations about the going rate. The court also agreed that a case involving a high profile plaintiff, multiple state and federal claims, and the Lanham Act “has a higher level of complexity than an average case in the community.”

After various adjustments, defendants recovered over $275,000 in fees.