A recent NLJ story, “Mattel Attacks $310 Million Bratz Copyright Award on Appeal” reports that Mattel Inc. has asked a federal appeals court to reverse the $310 million judgment against it in a long-running legal battle over Bratz dolls, maintaining that its failed infringement allegations didn’t justify “the largest copyright fee award in history.”  In its opening brief before the U.S. Court of Appeals for the Ninth Circuit, Mattel challenged U.S. District Judge David Carter’s entire judgment.  Carter ordered Mattel to pay $85 million in compensatory damages, $85 million in exemplary damages, $107.9 million in attorney fees and $32 million in costs to MGA Entertainment, Inc., maker of the Bratz doll.

Mattel counsel Kathleen Sullivan, a partner in the New York office of Quinn Emanuel, wrote that the attorney fees were unjustified because many were not related to MGA’s defense of Mattel’s copyright claims and, according to MGA’s own accounts, were “improper, bloated, excessive, unreasonable or even false” and “unnecessary.”  In its brief, Mattel did not challenge the jury’s finding of non-infringement on its copyright.  But the fact that another jury in 2008 awarded $100 million on those same claims, the first time the dispute went to trial, evidenced the reasonableness of pursuing them a second time, Sullivan wrote.

As a result, MGA did not deserve such “jaw-dropping” attorney fees, all but $2.5 million of which were associated with MGA’s copyright defense.  Furthermore, she wrote, the award was based on 7,000 pages of attorney invoices filed under seal and gave MGA “a windfall for amounts it would never pay its own lawyers.”  Sullivan noted that Carter based his award on MGA’s estimate of $129.6 million in fees billed by 11 firms – including Skadden Arps and Keller Rackauckas.  “But the assumption that every dollar of Skadden and Keller’s bills were for defensive work unrelated to any of MGA’s claims is unfounded,” Sullivan wrote.

Moreover, Carter did not account for “duplicative or wasteful sums” in those bills, she wrote.  “The court ignored the fact that MGA had called its own former lawyers’ fees ‘improper, bloated, excessive, unreasonable or even false’ and ‘unnecessary.’  The district court also erred in failing to reduce MGA’s claimed fees even though MGA has not and will not ever pay a large portion of those fees to its lawyers.” 

MGA initially sought $161 million, including the $129.6 million in fees and $32 million in costs.  In a recent ruling against its insurers, MGA upped its estimate of fees and costs to $175 million.