A recent Law 360 story by Rose Krebs, “Emerson Radio Gets $3.1M Atty Fees, Enhanced TM Damages”, reports that Emerson Radio Corp. has been awarded about $3.1 million in attorney fees following its $6.5 million default win in a trademark infringement suit, with a Delaware federal judge saying fees were awarded due to "unreasonable" litigation conduct by the companies it sued.  In a memorandum opinion and accompanying order, U.S. District Judge Gregory B. Williams also awarded $700,000 in enhanced damages to Emerson Radio in litigation against Emerson Quiet Kool Co. Ltd. and Home Easy Ltd.

"The Lanham Act provides that the court may award reasonable attorneys' fees in exceptional cases," and this was an instance where awarding fees to the plaintiff was merited, given the circumstances of the case, Judge Williams ruled.  "A case is exceptional if "(a) there is an unusual discrepancy in the merits of the positions taken by the parties or (b) the losing party has litigated the case in an 'unreasonable manner,'" Judge Williams noted, citing the Third Circuit's 2014 ruling in Fair Wind Sailing Inc. v. Dempster.

As the prevailing party, Emerson Radio asserted "that it is entitled to reasonable attorneys' fees because this case is exceptional based on both (1) the merits of the case, and (2) the unreasonable manner in which defendants litigated it," the opinion said.  "The court agrees that the case is exceptional," Judge Williams wrote.

Among the litigation conduct that was flagged were actions mentioned in a prior court decision that granted a motion to withdraw by the defendants' former counsel, including that the defendants' repeatedly refused to follow counsel's advice, were unwilling to engage in trial preparations, and had a "sudden and unexplained change of tack" during proceedings.

Another prior court order also took issue with Emerson Quiet Kool and Home Easy for being unable to obtain substitute counsel for a time, calling it "part of a pattern of delay and lack of representation that has plagued this litigation."

"Given these previous findings, the court need not further expand on defendants' litigation conduct," Judge Williams wrote. "In light of the totality of the circumstances, the court finds the present case is exceptional based both on the merits and on the unreasonable manner in which defendants litigated the case."

Emerson Radio submitted declarations breaking down the $3,159,000 in attorneys' fees incurred by Stevens & Lee, Cooley LLP, and an Orrick Herrington & Sutcliffe LLP attorney who worked the case before he moved over to Cooley, according to the opinion.  "Upon review, the court finds that the number of hours spent litigating this action in representation of plaintiff is reasonable," the opinion said. "Similarly, the court finds that the hourly rates are reasonable."