$110,373.45 is for attorneys’ fees and $8,336.58 is for costs. The work was performed by three attorneys
and two paralegals from the Los Angeles firm of Mitchell Silberberg & Knupp (“MSK”), and two
attorneys from the Chicago firm of Katten Muchin Zavis Rosenman (“KMZ Rosenman”). MSK is
known for its work representing record companies in matters thorughout the United States involving the
piracy of recordings. Recently, MSK has been lead counsel in on-line copyright infringement cases
including the Napster litigation. MSK has been lead counsel to record companies in various actions
involving the Aimster system since their commencement. When the eleven separate actions by or against
Defendants were consolidated by the Judicial Panel on Multi-District Litigation (“MDL Panel”) on
November 17, 2001 in this Court, Plaintiffs retained KMZ Rosenman to assist with the litigation.

Plaintiffs' counsel provided detailed biographical data regarding each attorney and paralegal that
assisted in the preparation and prosecution of the contempt action. MSK partner Russell Frackman has
an extensive intellectual property law practice that spans thirty-two years. He bills at a rate of $500 per
hour. MSK partner Patricia Benson has practiced for twenty-nine years. She specializes in complex
commercial litigation, including copyright litigation, and bills at a rate of$360 per hour. MSK associate
Karin Pagnanelli has been practicing for nine years during which time she has focused on copyright
litigation. Her hourly rate was $256.50 for 2002, and is $279 for the year 2003. MSK paralegals Linda
Bodenstein and Nancy Schafer have been involved in gathering evidence and performing, paralegal tasks
since the inception of this litigation and, before that, during the Napster litigation. Both Bodenstein's
and Schafer's hourly rate is $126.

KMZ Rosenman partner Floyd Mandell has been practicing for thirty years. He specializes in
intellectual property law and bills at a rate of $450. KMZ Ronseman associate Bradley Rochlen has
practiced for five years during which time he has practiced extensively in the area of intellectual property

law. His hourly rate is $230, The declarations of Frackman and Mandell as well as the information


for and the drafts of the Motion for Order to Show Cause re: Contempt as well as the reply brief to the
Motion. They contributed to the preparation for both court hearings on the matter. Finally, they
thoroughly prepared the Attomeys' Fees Submission and Declaration. Pagnanelli’s and Rochlen's work
was reasonable, not duplicative or excessive. Indeed, that associates rather than partners performed most
of the work resulted in reduced, rather than increased, costs. We do, however, reduce Rochlen’s billable
time by two hours from 54.9 to 52.9 total hours to reflect the deduction of the time he billed for
attending court hearings at which his presence was unnecessary in light of the written briefs Plaintiffs’

counsel submitted and the oral advocacy Mandell and Frackman provided.

Deep finally takes issue with the paralegals’ billable time of 182.9 hours, particularly the 162.4
hours spent determining if Defendants were in compliance with the Preliminary Injunction Order.
During those hours, Linda Bodenstein and Nancy Schafer searched for and downloaded 343 of Plaintiffs"
copyrighted works and downloaded the 100 most copyrighted works at the time from the Billboard Hot
100. Deep posits that it would have taken minutes, not hours, to determine if Defendants were
complying with our Order. While we disagree with Deep's assessment of how long Linda Bodenstein
and Nancy Schafer should have allocated in assessing Defendants' compliance, we do agree that their
billable time should be reduced. The entire volume of information Bodenstein and Schafer collected
was helpful, but not necessary for this Court to find Defendants in contempt of the Order. Accordingly,
we reduce the paralegals’ billable time spent determining Defendants’ compliance of 162.4 hours by 50%
to 81.2 hours. We do not reduce the 20.5 hours Bodenstein and Schafer allocated to preparing
documents and exhibits for the hearing on Contempt. Thus, the amended billable time for the paralegals
totals 101.7 hours.

Having evaluated the submissions and declarations of Plaintiffs' counsel as well as Deep's

argument, we calculate the award of attorneys’ fees below. With respect to MSK, Frackman performed



system; downloading and reviewing music from the system; burning the downloaded music to CDs. The
paralegals also expended 20.5 hours preparing documents and exhibits for the hearing on the Motion for
Order to Show Cause re: Contempt.

Deep raises five arguments regarding the reasonableness of the hours Plaintiffs’ counsel
expended on the contempt proceeding. First, Deep contends that Plaintiffs’ counsel failed to support
their request for attorneys’ fees with any actual copies of billing statements demonstrating the dates on
which the work was performed and when the clients were billed. Deep has failed to cite, and we have
been unable to locate, any authority supporting his contention that Plaintiffs' counsel was required to
submit such documentation. Indeed, the Seventh Circuit and a number of courts in this district have
ruled otherwise. See Connoly v. J.T. Ventures, 851 F.2d 930, 935-36 (7th Cir. 1988) (counsel's itemized
account and testimony of plaintiff's lawyer sufficient evidence on which to base award of attorney's
fees); see also Pepsico, Inc. v. Ortiz Mexi-Products, Inc., 2000 WL 198843 (N.D.II. Feb. 14, 2000)
(declaration of plaintiff's attorney alone sufficient evidence on which to base award of attorney's fees);
Svehla v. American Can Co., 1999 WL 169407 *2 (N.D.UL. Mar. 22, 1999) (original billing records
unnecessary to award attorneys’ fees). We are familiar with the period of time within which the
contempt proceeding took place. Frackman and Mandell have provided this Court with declarations that
adequately explain that the work was performed during that time and that all of the fees and costs have
been or will be billed to Plaintiffs.

Second, Deep asserts that the time entries Plaintiffs’ counsel provided are too vague and
overbroad for this Court to determine whether the time expended was both reasonable and necessary.
We disagree. This Court has a unique perspective with respect to the type of work Plaintiffs' counsel
had to perform in conjunction with the contempt proceeding. The contempt proceeding occurred during

a finite period of time and required that Plaintiffs' counsel and paralegals perform a finite series of tasks.



Plaintiffs' counsel provided regarding the market rates in the relevant legal community support each
attorney's hourly rate. Defendant Deep does not dispute the hourly rates of the attorneys or paralegals.

Plaintiffs’ fee request is based on 460.6 hours of work — 277.7 hours by the five attorneys and
182.9 hours by the two paralegals. Each attorney performed several of the following tasks: researching,
teviewing, and writing the Motion for Order to Show Cause re: Contempt; researching, reviewing, and
writing the reply brief in support of the Motion for Order to Show Cause re: Contempt; preparing for,
traveling to, and/or attending the court hearing on the Motion for Order to Show Cause re: Contempt;
preparing for, traveling to, and/or attending the court hearing on Contempt; and preparing the Attorneys’

Fees Submission and Declarations. Provided below is a table listing the time each attomey expended

on each task:
ATTORNEYS
TASK Frackman | Benson | Pagnanelli | Mandell | Rochlen | Total Hours
Per Task
Motion re: Contempt 5.7 2.6 81.1 54 16.2 itl
Reply Motion re: 2.5 2.8 26.5 4.2 2.6 38.6
Contempt
Hrg. on Motion re: 2 45 12.3
Contempt 42.5 22.7 104.5
Hrg. on Contempt 0 8.2 14.1
Attorneys’ Fees 0 0 13.9 0 9.7 23.6
Submission & Decl.
Total Hours Per 50.7 5.6 ° 144.2 22.3 54.9
Attorney

The paralegals spent 162.4 hours monitoring the Aimster system to determine if Defendants were
complying with the Preliminary Injunction Order by performing the following tasks: collecting and

reviewing evidence on the operation of the system; monitoring the system; analyzing changes to the



Robins Co., 101 F.R.D. 736, 738 (N.D.IIl. 1984). Here, the MDL status of the Aimster litigation and
Local Rule 83.15(a) requiring local counsel made it both reasonable and necessary for Plaintiffs to retain
local and national counsel. Plaintiffs selected MSK as their lead counsel long before the MDL Panel
consolidated the litigation in this Court. Plaintiffs selected KMZ Rosenman as local counsel after the
consolidation took place. MSK and, to a lesser extent, KMZ Rosenman performed the substantive work
with respect to the contempt proceedings. Thus, we may award attorneys’ fees for the work performed
by both firms.

Fifth, Deep argues that the amount of time certain attomeys and both paralegals billed was
excessive.‘ MSK partner Russell Frackman performed a total of 50.7 hours of work on the contempt
proceeding. Deep objects to the 42.5 hours that Frackman spent preparing for, traveling to, and
attending the court hearing on the Motion for Order to Show Cause re: Contempt, and the court hearing
on Contempt. Deep particularly contests the amount of time Frackman spent traveling from Los Angeles
to Chicago for both court hearings. As Frackman set forth in his declaration, he attended both court
hearings at which only he and Floyd Mandell argued on behalf of the Plaintiffs. Given Frackman's
critical role, we find that it is reasonable to award attorneys’ fees not only for the time he allocated in
preparing for and attending the hearings, but also for the time he spent traveling to those hearings.

Deep also objects to the 144.2 hours that MSK associate Karen Pagnanelli and the 54.9 hours
KMZ Associate Bradley Rochlen worked on the contempt proceeding. He contends that the time spent
was duplicative and “grossly excessive “ for “essentially routine” tasks. We disagree. In contrast to
Deep's perception of the contempt action, this Court does not view the matter or the work Plaintiffs’

counsel performed to be “essentially routine.” Together, Pagnanelli and Rochlen provided the research

‘Deep does not object to the amount of time MSK partner Patricia Benson and KMZ Rosenman
partner Floyd A. Mandell expended. ‘



Minute Order Form (06/97)

United States District Court, Northern District of Iinois

Name of Assigned Ji i Sitting Judge if O1
or Magitrate Judge Marvin Aspen than Asigned Judge
CASE NUMBER 01 C 8933 DATE 4/14/2003
CASE In Re: Aimster Copyright Litigation
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motiondue

(3) Oo Answer brief to motion due___. Reply to answer briefdue___.

(4) a Ruling/Hearingon___sset fora

(5) im Status hearing[held/continued to] [set for/re-set for]on__set for__—_at

(6) Oo Pretrial conference[held/continued to} [set for/re-setfor]on___setfor___—at_——

(7) Oo Trial[set for/re-set for]on_____at

(8) o [Bench/Jury trial] [Hearing] held/continuedto__—_at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (Cl Local Rule 41.1 CFRCP41(a\(1) CI FRCP41(a\(2).

(10) J [Otherdocketentry] Enter Memorandum Opinion and Order: In an order dated 12/20/02, this Court

found defendants John A. Dep, AbovePeer, Inc. and BuddyUSA, Inc. in contempt of the preliminary
injunction order we issued on 10/30/02. Pending before us is the determination of attomeys’ fees and
costs owed to plaintiffs’ counsel as well as the calculation of the fine defendants should pay to the Court.
For the reasons set forth, we order defendants to pay attorneys’ fees and costs in the amount of

$103,850.54 to plaintiffs’ counsel and a fine in the amount of $5,000.00 to the Court.

(1 [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.

Y | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form. Lyflo ae
ILI Si¢ sn

Copy to judge/magistrate judge

c
courtroom -
GL deputy’s

initials

- Date/time received in
centrat Clerk's Office



(1947). Where, as here, the purpose is compensatory, “‘a fine . . . must be based on evidence of actual
loss.” South Suburban Hous. Ctr. V. Berry, 186 F.3d 851, 854 (7" Cir. 1999) (citation omitted). The
“contemnor’s profits may be a proper measure of damages for civil contempt.” Connolly, 851 F.2d at
934. In this case, Plaintiffs’ request that Defendants pay to the Court $51,000.00 Tepresenting $1500.00
for each day that the Defendants were in contempt. In support of their request, Plaintiffs’ presented
evidence to this Court that Defendants’ profited approximately $1,500.00 each day they were in
contempt.

Defendants violated this Court’s Preliminary Injunction Order. That violation must be addressed

and vindicated. Yet the issue before us is one of proportionality. The litigation of this case and the
rulings of this Court have put Defendants out of business. Thus, Defendants’ plight juxtaposed with
Plaintiffs’ power, prestige, and influence within the recording industry dictate that this Court exercise
discretion in the imposition ofa fine. The case before us does not present a situation where Defendants'
violation of the Order will only be cured by ordering them to pay the entire amount Plaintiffs requested.
We believe a $5,000.00 fine is enough to vindicate the violation of this Court’s Order in light of
Defendants’ expenses in litigating this case as well as their loss of business. Thus, we order Defendants

to pay the Court a fine in the amount of $5,000.00

11



50.7 hours of work on this matter at a rate of $500 per hour, fora total of $25,350.00. Benson performed
5.6 hours of work at a rate of $360 per hour, for a total of $2,016.00. Pagnanelli performed 144.2 hours
of work, 130.3 of which was billed at $256.50 per hour, and 13.9 of which was billed at $270 per hour,
for a total of $37,300.05. The paralegals performed 101.7 hours of work at a rate of $126, for a total of
$12,814.20. With regard to KMZ Rosenman, Mandell performed 22.3 hours of work on this matter at
a rate of $450 per hour, for a total of $10,035.00. Rochlen performed 52.9 hours of work at a rate of
$230, for a total of $12,167.00. We therefore award a total of $99,682.25 in attorneys' fees to Plaintiffs’
counsel — $77,480.25 to MSK and $22,202.00 to KMZ.

Plaintiffs’ counsel also request costs in the amount of $8,336.58 for travel expenses — $6,826.80
for airline tickets and $1,509.78 for hotel stays — for Frackman and Pagnanelli to attend the court
hearings on November 26, 2002 and December 19, 2002. While Frackman spoke during both hearings,
Pagnanelli did not speak on either date. The litigation of a case is often complex enough so as to
necessitate the presence of counsel that contribute in ways other than addressing the court. In this case,
however, Plaintifis' counsel effectively litigated the contempt action against Defendants through written
briefs submitted to this Court and the oral advocacy provided by Frackman and Mandel. Pagnanelli's
presence at the court hearings was unnecessary and excessive. Consequently, we reduce Plaintiffs' costs
by 50%, representing the Pagnanelli's travel expenses, to $4,168.29. In light of the above analysis and
calculations, we order Defendants to pay Plaintiffs’ counsel total attomeys’ fees and costs in the amount
of $103,850.54.

B. FINE

This Court may impose sanctions for civil contempt in order to coerce compliance with a court
order or to compensate the complainant for losses incurred as a result of the contumacy. See United

States v. United Mine Workers of America, 330 US. 258, 303-04, 67 S.Ct. 677, 701-02, 91 L.Ed: 884

10



Plaintiffs' counsel submitted time entries that adequately describe the work each attorney and paralegal
performed.

Third, Deep asks this Court to exclude all paralegal time from the award of attorneys’ fees. Yet
contrary to Deep's characterization of binding authority on the matter, the Seventh Circuit has long
permitted the separate billing and allocation of paralegal time. See Missouri v. Jenkins, 491 U.S. 274,
284 n.7, 109 S.Ct. 2463, 2470, 105 L.Bd.2d 229 (1989) (noting that only the Fifth Circuit has refused
to allow the recovery of paralegal time as part of an award of attorneys’ fees); see also Connolly, 851
F.2d at 935-36 (paralegal fees recovered in attorneys’ fees award in contempt proceeding); Spanish
Action Comm. of Chicago v. City of Chicago, 81 1 F.2d 1129, 1138 (7th Cir. 1987). Indeed, this district
has allocated paralegal fees as part of an attorneys' fees award. See Pepsico, 2000 WL 198843.

Fourth, Deep argues that the total amount of time Plaintiffs' counsel expended — 460.6 hours —
was excessive. Deep contends that his pro se status obviated the need for Plaintiffs to dedicate five
attorneys and two paralegals to the preparation and prosecution of the contempt action against him. We
disagree. Plaintiffs are entitled to effectively litigate a matter regardless of whether an opposing party
is represented by counsel. We believe the task of Plaintiffs' counsel to effectively litigate the contempt
action against Deep was made more difficult and time consuming because of his pro se status. See Rose
v. Racine Correctional Inst., 141 F.R.D. 105, 108 (E.D.Wis. 1992) (“[p]rocessing a case involving a pro
se plaintiff makes the court's task, and opposing counsel's, far more difficult and time consuming.”). We
therefore conclude that the number of attorneys and paralegals who worked on the contempt proceeding
was not excessive in light of Deep's lack of representation.

Deep further asserts that this Court should disregard all work other than that performed by local
counsel, KMZ Rosenman. We decline to do so. Where it is efficient and sensible for a party to have

local and national counsel, that party may recover attorneys’ fees performed by both. See Curry v. A.H.



I. ANALYSIS

A. Attorneys' Fees

This Court has the broad discretion to award attorneys’ fees and costs for the preparation and
prosecution of a contempt action. See South Suburban Hous. Ctr. v. Berry, 186 F.3d 851, 854 (7th Cir.
1999); see also Matter of Establishment Inspection of Microcosm, 951 F.2d 121, 126 (7th Cir. 1991).
As the Seventh Circuit has explained, “[t]he distict court is in the best position to determine the worth
of the attorneys practicing before him.” Uphoffv. Elegant Bath, Ltd., 176 F.3d 399, 406 (7th Cir. 1999).

The calculation of attorneys’ fees involves the multiplication of hours reasonably expended by a
reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d
40 (1983).? Plaintiffs’ counsel bears the burden of substantiating, to this Court's satisfaction, the
reasonable rate and the hours expended. See id.; see also McNabola v. Chicago Transit Auth., 10 F.3d
501, 518 (7th Cir. 1993), We may increase or decrease the fee request in light of the following twelve
factors the Supreme Court set forth in Hensley:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the

skill requisite to perform the legal service properly; (4) the preclusion of employment

by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee

is fixed or contingent; (7) time limitations imposed by the client or the circumstances;

(8) the amount involved and the results obtained; (9) the experience, reputation, and

ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length

of the professional relationship with the client; and (12) awards in similar cases.
461 U.S. at 429-30 n.3, 103 S.Ct. at 1938 n.3 (citing Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717-19 (Sth Cir. 1974))3

Plaintiffs’ counsel request a total of $118,710.03 in attorneys’ fees and costs. Of this total,

? Although Hensley and other cases cited herein regard statutory fee awards, they are instructive
in the matter presently before us.

3A number of these factors “are subsumed within the initial calculation of hours reasonably
expended at a reasonable hourly rate.” Hensley, 461 U.S. at 434, n. 9.

3



Defendants from continuing to infringe on Plaintiffs" copyrights.

On December 19, 2002, counsel for the Plaintiffs appeared before this Court regarding the
Motion for Order to Show Cause re: Contempt, Local counsel for Defendants appeared but did not
speak to the merits of Plaintiffs’ Motion. Plaintiffs' counsel averred that Defendants stopped infringing
on Plaintiffs’ copyrights shortly after the entry of the Temporary Restraining Order, thirty-four days after
the issuance of the Preliminary Injunction Order. On December 20, 2002, this Court entered an order
finding Defendants in contempt of the Preliminary Injunction Order.

In accordance with our finding Defendants in contempt, we ordered Defendants to pay Plaintiffs
all attorneys’ fees and costs incurred in bringing the contempt action. Plaintiffs' counsel subsequently
submitted statements of fees and costs, and the parties have filed memoranda concerning the amount
which Plaintiffs' counsel should be awarded.' Fi urthermore, we ordered Defendants to appear before this
Court regarding Plaintiffs’ further request that Aimster pay to the Court the sum of $51,000.00,
Tepresenting $1,500.00 for each day that Defendants were in contempt. Defendant Deep appeared before
this Court pro se on January 28, 2003 at which time he and counsel for the Plaintiffs presented argument

on the matter.

‘Among Defendants, only Deep filed memoranda regarding attorneys’ fees and costs. Plaintiffs
argue that this Court should disregard Deep's opposition because his filings were both untimely and
improperly served. While we do not condone Deep's late filing, we nonetheless consider his Opposition
on the merits in the interest of ‘determining the attomeys' fees and costs in a just manner, With respect
to the issue of service, Deep avers that he served all Plaintiffs by fax on February 17, 2003. In support
of his statement, Deep attached a fax service list and e-mails from eFax.com confirming that the fax to
each Plaintiff was successfully transmitted on that date. Whatever the cause of Plaintiffs failure to
receive proper service, they filed a reply addressing each argument Deep raised in his response.

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
)
In Re: Aimster Copyright Litigation ) Master File
) No. 01 ¢ 8933
} Multi District Litigation #142 Tito
) st itigation ‘pore
5 7003
MEM UM OPINION AND ORD! pert

MARVIN E. ASPEN, District Judge:

In an order dated December 20, 2002, this Court found Defendants John A. Deep, AbovePeer,
Inc., and BuddyUSA, Inc. (“Defendants”) in contempt of the Preliminary Injunction Order we issued
on October 30, 2002. Pending before us is the determination of attomeys' fees and costs owed to
Plaintiffs' counsel as well as the calculation of the fine Defendants should pay to the Court. For the
reasons set forth below, we order Defendants to pay attorneys’ fees and costs in the amount of
$103,850.54 to Plaintiffs' counsel and a fine in the amount of $5,000.00 to the Court.
I. BACKGROUND

On October 30, 2002, this Court issued a Preliminary Injunction Order enjoining Defendants and
those acting in concert with them or at their direction or control (collectively “Aimster”) from infringing
Plaintiffs’ copyrights. Defendants continued to infringe Plaintiffs' copyrights despite our issuance of the
Order. Plaintiffs subsequently filed a Motion for Order to Show Cause re: Contempt. In support of their
Motion, Plaintiffs filed a series of declarations documenting Defendants’ infringing activity. On
November 26, 2002, all parties to the case appeared before this Court on Plaintiffs' Motion. At the
hearing, we set a briefing schedule that provided Defendants with an opportunity to respond to Plaintiffs!

Motion. In the interim, we issued a Temporary Restraining Order on December 2, 2002 restraining

\O>



Il. CONCLUSION
For the foregoing reasons, we order Defendants to pay attomeys' fees and costs in the amount

of $103,850.54 to Plaintiffs’ counsel and a fine in the amount of $5,000.00 to the Court. It is so ordered.

a

Ce

MARVIN E. ASPEN

United States District Judge

Dated df Yo 2

12