18-2328-cv Benihana of Tokyo, LLC v. Benihana Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2
21 st day of June, two thousand nineteen. 3

4 Present: PIERRE N. LEVAL, 5 ROSEMARY S. POOLER, 6 DENNY CHIN, 7 Circuit Judges

. 8

_____________________________________________________ 9

10 BENIHANA OF TOKYO, LLC, AS SUCCESSOR TO 11 BENIHANA OF TOKYO, INC., 12

13 Plaintiff-Counter-D efendant-Appellant

, 14

15 KEIKO AOKI, 16

17 Counter-Defendant-Appellant

. 18

19
v. 18-2328-cv 20

21 BENIHANA INC., AS SUCCESSOR TO 22 BENIHANA NATIONAL CORP., NOODLE TIME, INC., 23

24 Defendants-Counter-Claimants-Appellees

. 25

_____________________________________________________ 26

27 Appearing for Appellants: Jeremy W. Schulman, Schulman Bhattacharya, LLC, 28 Bethesda, MD. 29

302 Appearing for Appellees: Alan H. Fein, Stearns Weaver Miller Weissler Alhadeff & 1 Sitterson, P.A. (Joshua A. Munn, Jenea M. Reed, on the brief ), 2 Miami, FL. 3 Nicole Gueron, Clarick Guer on Reisbaum, LLP New York, N.Y. 4 ( on the brief ) 5

6 Appeal from the United States District Cour t for the Southern Di strict of New York 7 (Engelmayer, J. ). 8

9 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 10 AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED

. 11

12 Benihana of Tokyo, LLC appeals from the July 25, 2018 opinion and order of the United 13 States District Court for the Southern District of New York (Engelmayer, J. ) awarding Benihana 14 Inc. fees and costs totalin g $936,665.24 pursuant to Section 1117 of the Lanham Act. We 15 assume the parties’ familiarity with the underlying facts, procedural history, and specification of 16 issues for review. 17

18 We affirm for substantially the reasons set forth in the district court’s thorough and well19 reasoned opinion. The Lanham Act provides for the “award [of] reasonable attorney’s fees to the 20 prevailing party” in “exceptional cases.” 15 U.S. C. § 1117(a). We find no error in the district 21 court’s conclusion that Benihana In c. is the prevailing party. We al so affirm the district court’s 22 finding that this case presents “exceptional circumstances.” See Sleepy’s LLC v. Select Comfort 23 Wholesale Corp. , 909 F.3d 519, 530 (2d Cir. 2018) (“‘[A]n ‘e xceptional’ case is simply one that 24 stands out from others with respect to the subs tantive strength of a pa rty’s litigating position 25 (considering both the governing law and the fact s of the case) or the unreasonable manner in 26 which the case was litigated.”) (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc

., 27 572 U.S. 545, 554 (2014)). In considering whet her there are “exceptional circumstances,” a 28 district court is to consider “a wide variety of factors, in cluding ‘frivolousness, motivation, 29 objective unreasonableness (both in the factual and legal components of the case ) and the need in 30 particular circumstances to advance consid erations of compensa tion and deterrence.’” Id. 31 (quoting Octane Fitness , 572 U.S. at 554 n.6). 32

33 We have considered the remainder of appella nts’ arguments and find them to be without 34 merit. Accordingly, the order of the district court hereby is AFFIRMED. 35

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FOR THE COURT: 38 Catherine O’Hagan Wolfe, Clerk 39

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