Copyright Settlement Counsel

Settle your case anonymously, for less.

Defendant denied fees and costs

As I wrote in the FAQ section, just because someone fights and wins doesn’t mean the court will grant them fees and costs.

In a nutshell, Malibu Media sued someone and then decided they couldn’t win so they tried to dismiss the case. The defendant wouldn’t agree unless Malibu payed $17,500 in his attorney fees. Instead of agreeing, Malibu decided not to dismiss the case and push forward with discovery. A little later, Malibu changed their mind and offered to pay $13,000 in legal costs. The defendant rejected the offer because additional work since the $17,500 offer had brought the total fee to $24,000. Malibu dismissed the case and defendant requested that the court order Malibu to pay his fee.

The court decided that Malibu acted in good faith in bringing the lawsuit even though they later decided to drop it, so the court didn’t award the defendant any fees for that. The court also decided that Malibu’s actions in deciding to press on and threatening that the defendant would “lose everything he owns and owe my clients hundreds of thousands of dollars” did constitute bad faith, so costs incurred because of that were recovered by defendant, for a total of $6815.70.

Look at those numbers for a minute. The defendant paid $17,500 to get though an early part of the litigation. If it had gone further, that amount would have steadily climbed, and based on the eventual fee award, none of that would have been recovered if he won. It is only the part of the fees that were incurred after Malibu threatened to pursue the case because they were angered at the demand for fees.

This particular client was accused of downloading 700 films, so maybe $17,500 was less than he could have paid to settle; I don’t know what, if anything, was offered.

If you’ve been contacted by Malibu Media or another copyright owner, keep in mind that like in this case, legal fees can easily get to $17,500 by a fairly early stage of litigation and those fees might not be recoverable.

You can read the fee order here (it has a nice discussion of the factors a court will look at in deciding whether a copyright defendant should be awarded fees or not), and the appellate opinion here.