Legal Case Summary

Whenever you're ready. Good morning. May it please the court. My name is Harry Jacobs. I'm with the firm Ballard Spar. I represent the cross appellant, the American Board of Internal Medicine, which is known as ABIM. And what I'd like to do this morning is to address two main points today. Do you want to reserve any time for? Oh, yes. Thank you. Can I reserve five minutes for the bottle? That's fine. What I'd like to do is address two main points concerning the district court's errors that occurred in calculating ABIM's attorney's fees, both of which will require reversal. First is the district court's threshold error in failing to calculate a load star. And the second is the impermissible factors that the district court applied to purport to justify a very low fee award to ABIM. First, in terms of failing to calculate a load star, the district court itself expressly acknowledge the requirement to calculate a load star in page four of its opinion. I believe it even referred to the load star as the guiding light. Dr. Von Nuler also acknowledged the requirement to calculate a load star in her brief on appeal at pages 13 and 14. Well, don't you agree that even though a load star wasn't actually calculated here that under the copyright act, it's not necessary to have a load star determining the attorney's fees. No, Your Honor. I would not agree with that because I think it's very clear, particularly after the Supreme Court's opinion and Purdue, which is cited in our brief and was issued in 2010, that when regardless of what statute we're talking about, if it has a fee shifting provision, you have to calculate a load star. And this circuit has also said, I mean, this circuit pioneered a load star in lending. Well, the T-Pag case cop said under the Copyright Act in awarding attorneys fees, it's not necessary to do it with a load star. I am familiar with the T-Pag case from the first circuit, which was came down fairly recently. I don't believe, first of all, the T-Pag case, I don't believe follows Purdue. Second, the T-Pag case involved an award of attorney's fees to a defendant. It did not involve an award of attorney's fees to a plaintiff. It certainly didn't involve an award of attorney's fees in a case. Word of defendant was found to be a willful infringer. Well, the pregnant case also, the fifth, there's nothing in the Supreme Court, but it seems the circuits have stated that under the Copyright Act, the Discord can use a load star, but it's not required. It can use other methods. And the ninth circuit has done it in a not-presidential case, court-escalate URTIS. So is it necessary to have, if the District Court didn't want to use the, or what's going to, but didn't, is that an absolute error? Yes, the District Court's failure to calculate a load star is an error because the entire reason for calculating a load star is that it roughly approximates an actual fee, it permits meaningful review, and very importantly, you get reasonably predictable results

. But you calculated the load star, did you not, in the, or your side, when you made the presentation to the judge here, right? Yes, we did. And then you did, did we, decreased it so it was, you're down to about 42% or something like that? A, A, B, I, M decided to request less money than it was entitled to. That is correct. And, I mean, it sounds, what your argument sounds like is, look, the judge here did a, you know, sort of a generic seat of the pants, I think there's an $80,000 judgment. I'm going to give you half of that in turnies fees, and that's it. And you're saying that that isn't the way one goes about calculating. You may end up with $40,000 in the end. We don't know. Well, you're on two points on that. Yes, I agree completely that the seat of the pants, I'll give you half the award. I'll give you half, I'll give you an attorney's fees, half of what the jury awarded is exactly what this court said in Washington. You can't do the district court cannot adjust council fees to maintain a certain ratio between the fees and that is. What, was that a copyright act? Yeah, it was a civil rights case. It was not a copyright attack. So that, doesn't that highlight that highlights, it seems to me the full-crum upon which our decision turns. Namely, must the attorney's fees provision in the copyright act be read analogously to the civil rights statutes? If the answer to that is yes, you win. If the answer to that is no, you may win or may lose. Isn't the civil rights act really qualitatively different? But before the answer, can you just answer my question? If you understand my question, there's a little convoluted. I believe I understand your question and here's the thing. I agree that the Civil Rights Act and the Copyright Act do not have identical purposes. It would be silly for me to stand here before you and to say otherwise. But here is what they have that is absolutely the same. They both have a provision that entitles a prevailing party to a reasonable attorney's fee. Section 505 of the Copyright Act says a court may award a reasonable attorney's fee. That section does not say that the court may award an arbitrary $40,000 or $50,000 bucks. All right, but now you're two levels below where I want to get to. So let's go back for a minute. If it's a civil rights case, this is an easy vacate agreement because they didn't do what we've said and other courts have said calculate the load star etc. So if this is not a civil rights, if it's not required to be analyzed under that, then what authority do you have to indicate that a load star calculation was required in this case? First, the district court itself acknowledged that a load star was..

. Maybe it mispoke. It's not a case law. You can't argue that there was a waiver and the district court is now bound by some stray comment that it may have made. What case support do you have to indicate that a load star must be calculated in a copyright act case? The reason why a load star should be calculated in a copyright case, exactly like it should be calculated in a civil rights case or an trade market case or in a patent case, it is because today it has widely been regarded, including by the Supreme Court, as the best way to calculate reasonable attorneys' fee because it roughly approximates the fee. It allows for meaningful judicial review because you know what the court did below and it brings about reasonably predictable results. That is... I put it on the flip side. I'm sorry. I put it on the flip side. There is no reason why the standard for a copyright case in terms of calculating attorney's fees should be any different. The purpose of the Copyright Act is to encourage creative works for the benefit of the public. That is exactly what ABIM does. Its exams are for the benefit of the public because the public relies on the outcome of those exams to select physicians. This is about protecting the public for the benefit of the public. There's a lot of cases in which a load star comes at the back end. It is a cross check. There are certain types of cases where a load star comes at the beginning, such as civil rights cases, but let's go back to Joe Chagam's question. How is... I guess it is 505 of the Copyright Act. How is that the same as or different than civil rights acts? Civil rights act on which the Washington decision was based. Well, the best of my question. As a matter of policy, you are saying... To the best of my understanding of the language is..

. To the best of my language, to the best of my understanding of the language is basically the same. The Court may award a reasonable attorney's fee. If a reasonable attorney's fee is the goal, the Supreme Court and this circuit that pioneered... But it starts off the Court May, so that is obviously... Right, so... ...that the Court had significant discretion. Right, and in this case, the Court already decided to award ABI and attorney's fees. That is a separate order that isn't even up on appeal before this Court. That is a totally separate decision that Judge Joyner issued in which he said, yes, given that the jury found that Dr. Vomjula was a willful infringer, and to promote compensation and deterrence, ABI is entitled to a reasonable attorney fee. That's a totally separate order, and then we have the order before us right now. That's correct, but you're correct that this can't be affirmed because there was... The District Court did not go forward on the calculating the fee and the method in which you indicated. But if it's not censored and have a load store, why can't this case be affirmed under the Fogarty and lead factors where no load store was calculated? And that was affirmed based on factors other than load store calculations. And the reason for that is that the factors that the District Court applied to justify the very low fee award are... Those factors are impermissible. Under load, under Fogarty and load their impermissible.

.. Well, let me go through the factors and discuss them one by one. First is the first factor is damages. The factor of damages, the jury's award of damages, is really what is at stake in the case. What are the stakes in the case? In this case, the damages awarded by the jury do not reflect the enormous stakes in the case. For ABIM, the stakes were incredibly high. But it was protecting its most valuable property, the exam that it gives to measure whether a physician has the knowledge, the skills, and the judgment to be board certified. And for Dr. Van Uler, the stakes for her were enormously high. She lost the license. Well, she didn't lose her license. Board certification is not a license to practice. I'm sorry. Well, lost the valuable sort of board certification. The ability to specialize. Well, no, she can still practice gastroenterology. She's just not board certified. But for her, and she said this, you know, this is in the record, she wanted to clear her name. She wanted to punish ABIM, which was clear from the 11 counter claims that she brought against ABIM, and she lost on all of them. So the stakes in this case are very high to focus in award of attorney's fees just on the damages. There are many, many cases that I said. But let's go back to Judge Hardam's first question that he asked you that I'm not sure you answered. If we conclude that failure to calculate a load star, isn't fatal to a district court's fee decision under the Copyright Act. What happens to your position? The district court's decision is still reversed because given the factors that were applied, they, first of all, the facts that were applied to some of the factors are clearly erroneous. And I would submit that it is absolutely an abuse of. So then you have to have, okay, it's them what you're saying it's an abuse of discretion. It is an abuse of discretion. And I'd like to. I'm not sure if I hear it on the bottle or now, but look at what are those? What are those clearly erroneous findings of fact by the district court and what other evidence of abuse of discretion do you offer us? Okay. Another factor that the court applied I was addressing before that the district court expressly used the amount of damages that jury awarded that. Can we call that the proportionality? The proportionality is

. But where's the case law that says again, let's, I know this is the biggest assumption because you disagree with it, but assume that we're not in the realm of civil rights act attorney's fees awards. What case law says that the district court cannot consider proportionality. There are. In fashioning a Justin and fair attorney's fees award. There are two cases that were decided by Judge Posner in the seventh circuit, which explicitly state that where the jury gives a low amount of damages. That's actually a reason that is a stronger reason to award attorneys fees and the reason. What statutes were an issue in those cases? That's copyright. They're both copyright cases. So comes to the back door through the measure of success in the litigation, even though it, even though you can't have proportionality between the fee and the award, but it's a question of whether or not the litigation was successful. Well, but in this case, the litigation was overwhelmingly successful because damages, the way that you've damages is one piece of that. And here the jury found that the defendant was a willful infringer. A.B.I.M. prevailed on 13 of the 14 claims in the case. Dr. Vomula was also seeking millions of dollars in damages because she claimed that she wasn't a cheater and that she wasn't an infringer. And she lost. A.B.I.M. won on all of that. And A.B.I.M. did obtain $91,000. A.B

.I.M. did obtain $91,000 for infringement of 50 questions. I do see the red light, but I just, I really do want to go back to. We'll get you back on the robot. You'll get the back from that. We have five minutes. Okay. And you might be up longer than that. Okay. Thank you. Mr. Ellis. Good afternoon, Your Honours. My name is Glenn Ellis from laser free vault. And I have the privilege of representing Dr. Sarah Vomula in this appeal. The district court didn't... What's the argument that district court did it, you know, a gestalt theory here that, you know, it just feels right to do have. I mean, don't we need more than that? I mean, when you look at, for example, I mean, we've got some tough cases here where Evans v. Port Authority, which is a third certification, 2001, Judge Manesman wrote that we have to do a line by line analysis, which seems to be an awfully tough standard. Right, Your Honour. And this is a copyright case where there is no case that says the judge has to do a load star. And did the judge actually do a load star here and, uh, or did need to do a load star? Well, not being in the judge's chambers, what I believe happened is the judge issued his order saying, this is the kind of case I'm going to give attorneys fees. And in a footnote, he said, I'm going to give me a look, we're going to do a load star. Council, be conscious of the fact that you have to, you have a good faith, duty of excluding redundant and excessive billing. And submit it to me. And what the judge got was 200 pages of unclear and big, you as vague duplicate billing. But you're in the third circuit and the third circuit, again, back in the Evans case says that you cannot make findings of reasonableness based on a generalized sense of appropriateness

. And it looks like the judge here made a, I mean, at least based on the record that we have looks like a generalized sense of what is appropriate. And aren't we bound by our president? Well, Your Honour, it appears that the court in his opinion cited to specific examples. And I believe he said there are two numerous examples. He cited to a lot of examples to show that there was duplication, but one could make a very easy repost to that and say that yes, but they discounted. The substantially the amount of fees requested initial or at least what their load star showed by what became about the 43% is what they actually requested. Well, Your Honour, it's their burden to submit the necessary and factual information to support their load star. They did and they discounted it. So they did it on their own. So it would seem to say that there was duplication. That is really kind of off the table because they took it off the table. Well, it's not clear other than saying we're going to seek less. We're going to cut 42% off. Why they cut the 42% off. But even if they say we're going to cut the 42% off. Did they ask for 43% or did they discount it by 42%? I think they discounted it by 42%. They said this is our number. And that was it. No, I thought the damages 42. This was 43. But rather it's not about the same point. The point is they discounted it significantly in terms of what they requested. And even knowing that the court looking at the information provided to it found that it was still unable after reviewing all 200 pages to find that the load star, the reasonableness of the hours extended were in fact reasonable. So the court turned the page knowing that it's not bound by deciding the case on load star. They court turned the page looked at the more reason to have a correct load star. It's sort of like in sentencing. I don't know if you know if you don't know if you know if it's criminal work, but in sentencing before you get to the third step, the actual sentence, you have to have a correct calculation of what the sentencing guidelines are. And here it seems that you need at least a correct calculation so that we know what we're dealing with apples versus apples with regard to the amount of time that exists or purposes of determining a proper fee award if one is proper at all. In this court, the district court who heard all of the evidence, who handled all of the cases because this was won in a number of cases that were brought against doctorate by any guy. I am that court is in the best position wasn't the best position to look at this load star request and realize it was foreign access. But don't you have to agree that the award had nothing to do with the load star. I mean that the judge was explicit about it

. The judge said, I'm going to award attorneys fees equal to half the verdict. I mean that's that we don't have to speculate as to what the judge did here. The judge tied this attorney's fee award to a proportionality analysis that was one half the verdict, isn't that true? After the judge found that the evidence submitted didn't meet their burden, the judge then did go about reaching the number a different way. And he lamented or noted at least that what they were requesting was 22% excuse me the verdict they earned was only 22% of the fees that they were asking for. Right. So again, what drove this was, was Judge Ambrose suggested a feel? Well, a sense of what is equitable and just under the circumstances. I don't think the judge simply have the amount without thinking about the case. There's no doubt about the judge thought about the case. As we say where I go, ain't no doubt about it. But there is, but the question is, how do you go about it in a way in which it can be reviewed by somebody who decides to take a few? Well, in thinking about the case, the judge applied the factors from this court and lived and looked at the complexity of the case, the fact that there were multiple cases involved here which would provide judicial efficiency to the ABIM. And also at the success of the case, if he didn't use the load star, and obviously he did not use the load star this case, even though he said he was going to. Right. But he didn't use load star. Tell me what was the standard that he applied in determining what would be a reasonable attorney's thing. There's got to be a standard so that we can review that standard that he applied. That's $64.00. In the, in the, in the lives case, this court says that there are factors the courts should consider. And those are the factors the court considered in specific the court considered the complexity of the case, the court considered the fact that there were other cases, the court considered the deterrence factor and the court considered a lack of actual malice, the court considered a degree of success. Now, ABIM claims it's a great success. That's not what he said in the opinion that he gave. Well, that's not what he articulated as a reason for the, the, the, that's, that's good. The law that you're, you're taking off there, but that's not what he said was the basis for the fee award. Well, those are the things that he talked about. He talked about how the fact that there had been this award and the fact that this person had been put out of business would deter other doctors from doing what she had done. He talked about how there were multiple cases which would have provided efficiency to ABIM. He talked about how most of the discovery was gained through other individuals. Well, he mentioned this that this, just as he mentioned, the load star, but the, well, this was as Judge Ambrose said, the $64 question is what standard, if he didn't use the load star standards, what did he use? What did he use? Well, Your Honor, what I'm saying is he used the lives factors, which at the end of that opinion before the court moved on, the court said clearly that the district court is not bound to give an attorney's fee. That it's discretionary and that if the district court finds one is not necessary, that one doesn't have to be given. And in specific, the court states that if the district court concludes that fees are proper, it should then consider the relative simplicity of the defense. The judge did that here and whether the retention of out of town council with the company increased with necessary, that's not applicable here

. But the sum request that is large and we note that it may be disproportionate to the amount at stake and excessive in light of the plaintiff's resources. The judge considered the proportionality. The problem you have is on page four and on footnote two, the judge acknowledges that the load star is presumed to be reasonable and in the footnote it has many virtues. And then it goes on and you need to calculate the load star and then the court doesn't do it. I mean, that's like a slam dunk. The court doesn't do it because it wasn't provided the information it needed by ABIM. And the court... And in the end, you may win, but we're talking about process here. No, I understand that, Your Honor. I agree that the court in its original order granting attorney's fees and its mind was going to apply a load star. In reviewing the documents provided by ABIM, the court obviously shifts gears and decides not to use a load star and is not bound to use it. But in the back of the court, pick yourself in our position. We've got precedent that says that load star is very important. So important that our circuit probably, maybe unlike any other, says that you need to go line by line. I mean, that's a toughy. The court says, yep, got to do a load star. And there's important reasons, important virtues as to why you should do a load star. And then doesn't do a load star. As a matter of process, what do you want us to do? Well, you want to do a good stall theory as well. Do your honor. But I think that the court was right in saying that here, the difference, this is a copyright case. And this copyright, under the Copyright Act, it's not the same as a Civil Rights Act or a class action. It's not the time I'm using it. You need to answer my question. I think the court should affirm because the court here didn't merely happen to be this particular. So we're saying that, you know what, even though this circuit requires load star, even though it requires a deep hard look at load star, the fact that it, and the court here acknowledges that the fact that it wasn't done, it's okay. Because, and in the future, the next case, when you're on the other side, don't worry about it. It's okay. You've got to somehow, every now and then, put yourself in our position as to what we would do and how we're not screwing it up for the next case down the road

. You're not doing that. I think you're on of the court either has to take the hard line of saying that all of these kinds of cases where there's a fee shifting provision, a load star must be done, and the court must go through all 200 pages and eliminate the ones that it finds to be unreasonable. Or the court has to say, this is a copyright act case, and in the Copyright Act, the court has tremendous discretion to decide what the amount... You want us to say that the load star doesn't have to be calculated in copyright cases. I think that if it does, you lose, right? Well, your honor. If it does, then yes, are original below when we objected to the reasonable of the fees we actually said either the court should deny the fee petitioner send the ABIAM back to recalculate it. The court decided to say, well, the fees are unreasonable, but I can look and looking to page 11 of the court's opinion, the court says in arriving an appropriate award under the circumstances presented by this case, we consider those factors outlined by the third circuit. And in that, from page 11 to page 13, the court annunciates and enumerates why he reached that number. Now, it does... Which is not a load star approach. It's a totality of the circumstance. It is, your honor. It's looking at the case, having lived with the case, knowing, having looked through all 200 pages of the bills, and knowing what may happen in terms of the deterrence factor, in terms of what did happen to this person, and deciding that it in fact is an appropriate number. Now... You know what? And it may be an appropriate number. As I said before, this may go back, and this judge may do exactly the same thing, and it may be quite likely, maybe the right result. No problem, but there is a process that you have to go through. And that's what we're talking about here. We're not saying that this was the 40,000, it's ultimately the wrong number. And I realize your position as an advocate is to try to get it affirmed in the here and now. But we have to think about what happens down the road. And I don't have an answer for you, and you're not supplying me one of the stuff, why we should ignore the process that we normally have in place, in most cases, with respect to the awarding of fees. Well, I think the court said in other cases that have looked beyond the load star for deciding these kind of copyright cases. And here, you have to remember that the purpose of the copyright act is not for the judges. What you could have made is perhaps is that a, you know what, load star shouldn't be a front. It should be just a cross check. As in some other instances, it is. It's just a cross check for to be sure that you've arrived at a number that makes some sense. Well, that is what load stars, and that is what this court said, the court looked at the fees and said, well, you're requesting your award and damages is 22% of the fee of your load star. Your load star is obviously unreasonable. And in the court, not in a civil rights case. I mean, the cases are legion where not in the civil rights case, people get $100 and they get $50,000 in legal fees. Right. You're right. But the public policy driving the civil rights case is different than the public policy driving a copyright act, which is, which is all another way of saying you need to convince us. To apply a different standard in copyright cases. And that different standard is going to give trial judges substantially more latitude to fashion just inequitable fee awards than they would otherwise have in those civil rights cases. Correct. Yes, Your Honor. And I think that is a standard because the copyright act, the main purpose of the copyright act is not to protect authors. The main objective of the copyright act is to allow for progress and signs. And here, if you look at what happened here, this plaintiff was a, this defendant was accused of copying 77 questions. At the end of the day, she was only found to have infringed 21 if you, if you accept A B I M's interpretation of the jury's verdict sheet, which, which obviously, Dr. Vamila believes not her arguing she only treated on 21 questions, but it's not helps you. It's not a matter of cheating only on 21 questions. It's a matter that all those other questions that she was left to have bridged on. They now were part of the public domain. There has to be a place for people who are putting together review courses. They're, the people that are pretending to have the other review courses for doctors or former doctors who have sat for this exam. And if they're faced with the choice of, oh, maybe the question I'm crafting is an A B I M question and I'm going to be hit with hundreds of thousand dollars of attorney's fees, then they're not going to do that. So is your argument that one should take 21 over 77 and that should be the proportion that we do is there should be a proportionality test? Well, no, you're honored because that can't be, it can't be that. But what you have here is you have a jury coming out down the middle and judge Posner talked about toss up copyright cases in the assessment technologies case. And you have a jury coming down the middle saying look, this was half of the questions are, we'll give you half of the questions, but half of the questions she's accused of aren't in French. No, wait a minute, I'm talking about it. It isn't a toss up case. What this says is if you look back later, an individual was found by a jury to have violated the Comprehright Act with respect to 21 questions on a board specialization certification exam period

. It should be just a cross check. As in some other instances, it is. It's just a cross check for to be sure that you've arrived at a number that makes some sense. Well, that is what load stars, and that is what this court said, the court looked at the fees and said, well, you're requesting your award and damages is 22% of the fee of your load star. Your load star is obviously unreasonable. And in the court, not in a civil rights case. I mean, the cases are legion where not in the civil rights case, people get $100 and they get $50,000 in legal fees. Right. You're right. But the public policy driving the civil rights case is different than the public policy driving a copyright act, which is, which is all another way of saying you need to convince us. To apply a different standard in copyright cases. And that different standard is going to give trial judges substantially more latitude to fashion just inequitable fee awards than they would otherwise have in those civil rights cases. Correct. Yes, Your Honor. And I think that is a standard because the copyright act, the main purpose of the copyright act is not to protect authors. The main objective of the copyright act is to allow for progress and signs. And here, if you look at what happened here, this plaintiff was a, this defendant was accused of copying 77 questions. At the end of the day, she was only found to have infringed 21 if you, if you accept A B I M's interpretation of the jury's verdict sheet, which, which obviously, Dr. Vamila believes not her arguing she only treated on 21 questions, but it's not helps you. It's not a matter of cheating only on 21 questions. It's a matter that all those other questions that she was left to have bridged on. They now were part of the public domain. There has to be a place for people who are putting together review courses. They're, the people that are pretending to have the other review courses for doctors or former doctors who have sat for this exam. And if they're faced with the choice of, oh, maybe the question I'm crafting is an A B I M question and I'm going to be hit with hundreds of thousand dollars of attorney's fees, then they're not going to do that. So is your argument that one should take 21 over 77 and that should be the proportion that we do is there should be a proportionality test? Well, no, you're honored because that can't be, it can't be that. But what you have here is you have a jury coming out down the middle and judge Posner talked about toss up copyright cases in the assessment technologies case. And you have a jury coming down the middle saying look, this was half of the questions are, we'll give you half of the questions, but half of the questions she's accused of aren't in French. No, wait a minute, I'm talking about it. It isn't a toss up case. What this says is if you look back later, an individual was found by a jury to have violated the Comprehright Act with respect to 21 questions on a board specialization certification exam period. That's where it'll come down. That's history. The fact that it they argued there was more and the jury found less the historical fact is that this person was found to have violated the copyright with respect to 21 questions. Yeah, you're on with respect to 20, which is less than 50% of what you just said yourself. The argument that the path you're leading down doesn't help us. Well, I understand it doesn't help in setting a standard for the copyright act to do attorneys fees. So what standard would you have asked us to apply here? I think that the standard that should be applied is the discretion of the court to look at the factors listed. I understand that. Well, what standard should we apply in assessing whether the court has properly used this discretion? It's an abuse of discretion standard. No, no, no. If we're looking at an abuse of discretion standard, what factors should we take into account in order to decide whether there has been an abuse of discretion? Well, the factors should should be the award, the damages award. It should be a complexity of the case. It should be where do you start? The damages award? When you start, well, you could start at the damages award, then you move on to the complexity of the case. You move on to the deterrence after all copyright act is about deterring other infringers. Those are the kinds of factors that have already been laid out by this court. Was it a very specific case? No, your honor. The district court found that it wasn't a complex case. There were five witnesses. There were 11,000 pages of documents and there were no experts, according to ABIM. Even though Dr. Vomula had argued that one of their witnesses was technically an expert, ABIM argued that there weren't, so there were no experts reports, no expert depositions, five depositions, four of which ABIM defended. So this was not a complex case. And the jury awarded less than 50% of what ABIM did not have. What other factors should be taken into account? The damages, the complexity of the case, the deterrence effect. And what about the amount of attorneys fees that the other side expended? What about them? I think the court considered them in this case. I think they were presented to the court. The court looked at them and found that they were considered them after they were discounted down to 43%. I think they were actually discounted by 57%. I think the number, I believe that's the number. They asked the numbers discounted by 42% your honor. The damages was 42% of what they requested

. That's where it'll come down. That's history. The fact that it they argued there was more and the jury found less the historical fact is that this person was found to have violated the copyright with respect to 21 questions. Yeah, you're on with respect to 20, which is less than 50% of what you just said yourself. The argument that the path you're leading down doesn't help us. Well, I understand it doesn't help in setting a standard for the copyright act to do attorneys fees. So what standard would you have asked us to apply here? I think that the standard that should be applied is the discretion of the court to look at the factors listed. I understand that. Well, what standard should we apply in assessing whether the court has properly used this discretion? It's an abuse of discretion standard. No, no, no. If we're looking at an abuse of discretion standard, what factors should we take into account in order to decide whether there has been an abuse of discretion? Well, the factors should should be the award, the damages award. It should be a complexity of the case. It should be where do you start? The damages award? When you start, well, you could start at the damages award, then you move on to the complexity of the case. You move on to the deterrence after all copyright act is about deterring other infringers. Those are the kinds of factors that have already been laid out by this court. Was it a very specific case? No, your honor. The district court found that it wasn't a complex case. There were five witnesses. There were 11,000 pages of documents and there were no experts, according to ABIM. Even though Dr. Vomula had argued that one of their witnesses was technically an expert, ABIM argued that there weren't, so there were no experts reports, no expert depositions, five depositions, four of which ABIM defended. So this was not a complex case. And the jury awarded less than 50% of what ABIM did not have. What other factors should be taken into account? The damages, the complexity of the case, the deterrence effect. And what about the amount of attorneys fees that the other side expended? What about them? I think the court considered them in this case. I think they were presented to the court. The court looked at them and found that they were considered them after they were discounted down to 43%. I think they were actually discounted by 57%. I think the number, I believe that's the number. They asked the numbers discounted by 42% your honor. The damages was 42% of what they requested. But my understanding was that they claimed that the total amount they expended to litigate the copyright claim was $859,239. They requested $371,049, and that represents 43% of the $159,000 number. So they discounted by 57% to begin with. So one could make a pretty good argument, perhaps, that that takes account of the possibility of duplication. Well, the court still had to go through it, still had its obligation to go through it, and you could arrest them. You just put your finger right on it, has to go through it, has to go through it hard. And in this case, it found it unreasonable. But where, in this opinion, does it say that this is wrong or that's wrong, and this whole segment is wrong. The court, in its opinion, provides, does not provide a complete list of all of the issues with their fee petition granted, but the court, in its opinion, does set out several examples. For example, there's 108 hours billed for preparation of depositions and attendance of depositions. But is that, is that in the opinion? I mean, you may be, again, I emphasize, in page 9, you may have a, and maybe spot on with regard to the ultimate conclusion here, but we've got to have something a process by which we review it. Starting on page 9, your honor of his opinion, he lays out the issues that he finds with the fee petition, he finds issue with them meeting their burden of showing it's reasonable. Because by way of example on page 9. Yes, and then he provides examples on page 10. You have one on page 9. Two on page 9. You have one, two, three, four on page 10 that are put together. And then there's an additional example, so that's a way more. Finally, so he's about two pages of examples. I mean, it, it looks like, let's go back to Judge Hardam's point, it looks like what happened here is that this was a totality of the circumstances assessment. And that doesn't appear to be what we normally do. Well, I will not disagree that the judge is not list all of these issues he found with the billing. But I don't think that he under the Copyright Act is required to, unless this court is now going to apply a new standard. No. Copyright acts. Well, or a standard. Well, a standard that the judge has to apply the load star standard the same as the civil rights or class action cases to copyright actions. Where typically the judge is discretion as ruled as to whether any fees would apply. Any further questions? Thank you. We're here for Mr. Jacobs

. But my understanding was that they claimed that the total amount they expended to litigate the copyright claim was $859,239. They requested $371,049, and that represents 43% of the $159,000 number. So they discounted by 57% to begin with. So one could make a pretty good argument, perhaps, that that takes account of the possibility of duplication. Well, the court still had to go through it, still had its obligation to go through it, and you could arrest them. You just put your finger right on it, has to go through it, has to go through it hard. And in this case, it found it unreasonable. But where, in this opinion, does it say that this is wrong or that's wrong, and this whole segment is wrong. The court, in its opinion, provides, does not provide a complete list of all of the issues with their fee petition granted, but the court, in its opinion, does set out several examples. For example, there's 108 hours billed for preparation of depositions and attendance of depositions. But is that, is that in the opinion? I mean, you may be, again, I emphasize, in page 9, you may have a, and maybe spot on with regard to the ultimate conclusion here, but we've got to have something a process by which we review it. Starting on page 9, your honor of his opinion, he lays out the issues that he finds with the fee petition, he finds issue with them meeting their burden of showing it's reasonable. Because by way of example on page 9. Yes, and then he provides examples on page 10. You have one on page 9. Two on page 9. You have one, two, three, four on page 10 that are put together. And then there's an additional example, so that's a way more. Finally, so he's about two pages of examples. I mean, it, it looks like, let's go back to Judge Hardam's point, it looks like what happened here is that this was a totality of the circumstances assessment. And that doesn't appear to be what we normally do. Well, I will not disagree that the judge is not list all of these issues he found with the billing. But I don't think that he under the Copyright Act is required to, unless this court is now going to apply a new standard. No. Copyright acts. Well, or a standard. Well, a standard that the judge has to apply the load star standard the same as the civil rights or class action cases to copyright actions. Where typically the judge is discretion as ruled as to whether any fees would apply. Any further questions? Thank you. We're here for Mr. Jacobs. In terms of the initial question, whether the load star should also be required in copyright cases added as it is required in many other types of cases. The simple answer is that yes, it should because the purpose of the fee shifting provision of the copyright act is to encourage litigation by competent counsel. Well, why could one can make an argument here that the load star becomes significantly diminished in terms of significance because you made the decision from at the outset to discount your fees by 57% or fees requested by 57%. We did a, a, b, I, and did agree to request a lower fee, but I don't see how that affects the process that a district court needs to go through in a copyright case. But if you had 859,000 that the load star would show and you're saying yourself that, okay, we're not requesting that we're requesting whatever is 371,000. Correct. So might that not put an arrow in the quiver of your opponent saying that the load star isn't as significant as it might otherwise be? No, you're honor because my client for its own reasons decided to request a lesser sum of money into which it was entitled under the law. That is what it decided to do. But in effect, you took the note, the argument, it couldn't have been because you thought it would be more persuasive that a case with five witnesses, you might have invoked the eye of a trial judge asking for almost a million dollars in legal fees. Well, that didn't influence the decision. It was just, it was just charity. Actually, in my view, a million dollars to take a copyright case to trial for a trial but last two weeks is the exact right amount of money. And what I would also like to discuss are the factors that the district court applied to justify its fieldward, one of which was. Before he gets that. Yes. Why under the Copyright Act, the load star is not absolutely required. If the district court had a standard under the Copyright Act that it wanted to apply other than the load scar and ticked off those various elements of the standard, why would that be sufficient without actually establishing a load scar and doing the usual load scar multiplication and factors? The load star should be required for cases under the Copyright Act like it is for all virtually all of their fee shifting statutes. There is no reason not to require it because it is the load star that enables an appellate court to have a proper appellate review and it there is also certainty that goes with that. Lawyers do date lawyers. Well, I mean, lawyers take copyright cases on contingency. Well, if there is a standard that is established other than the load star, why is that reasonable and why can't that be properly reviewed by a court of appeals? I am not aware of the standard other than the load star that is established. You said that the load star gives you certainty to the begin with but the problem is in this case what certainty is there? I mean, you asked for eight out of you said you had to a certainty eight hundred fifty nine thousand dollars worth of fees. You asked for three seventy one. So, okay, that's a step in one direction but where is the certainty there? And the judge is saying he still has problems with it. There is a certainty there because in counsel in being a client and deciding how to manage your case and being counsel and advising a client. You have some certainty that at the end of the day someone will look at the hours that were expanded on the case, multiplied by the billing rate. In this case, our billing rates were uncontested. There was no dispute about that and know that you're going to get a number in the end as opposed to the judge pulling a forty or fifty thousand dollar bonus out of the sky for a ten day jury trial. How can you counsel a client to that effect with any degree of confidence when there's not a single case in the courts of appeals or from the Supreme Court? It says a load star must be calculated in copyright cases. And in fact, a Fogarty, which I'm not sure why you didn't cite it and either your briefs, Fogarty, counsels otherwise. Supreme Court and Fogarty has said otherwise

. In terms of the initial question, whether the load star should also be required in copyright cases added as it is required in many other types of cases. The simple answer is that yes, it should because the purpose of the fee shifting provision of the copyright act is to encourage litigation by competent counsel. Well, why could one can make an argument here that the load star becomes significantly diminished in terms of significance because you made the decision from at the outset to discount your fees by 57% or fees requested by 57%. We did a, a, b, I, and did agree to request a lower fee, but I don't see how that affects the process that a district court needs to go through in a copyright case. But if you had 859,000 that the load star would show and you're saying yourself that, okay, we're not requesting that we're requesting whatever is 371,000. Correct. So might that not put an arrow in the quiver of your opponent saying that the load star isn't as significant as it might otherwise be? No, you're honor because my client for its own reasons decided to request a lesser sum of money into which it was entitled under the law. That is what it decided to do. But in effect, you took the note, the argument, it couldn't have been because you thought it would be more persuasive that a case with five witnesses, you might have invoked the eye of a trial judge asking for almost a million dollars in legal fees. Well, that didn't influence the decision. It was just, it was just charity. Actually, in my view, a million dollars to take a copyright case to trial for a trial but last two weeks is the exact right amount of money. And what I would also like to discuss are the factors that the district court applied to justify its fieldward, one of which was. Before he gets that. Yes. Why under the Copyright Act, the load star is not absolutely required. If the district court had a standard under the Copyright Act that it wanted to apply other than the load scar and ticked off those various elements of the standard, why would that be sufficient without actually establishing a load scar and doing the usual load scar multiplication and factors? The load star should be required for cases under the Copyright Act like it is for all virtually all of their fee shifting statutes. There is no reason not to require it because it is the load star that enables an appellate court to have a proper appellate review and it there is also certainty that goes with that. Lawyers do date lawyers. Well, I mean, lawyers take copyright cases on contingency. Well, if there is a standard that is established other than the load star, why is that reasonable and why can't that be properly reviewed by a court of appeals? I am not aware of the standard other than the load star that is established. You said that the load star gives you certainty to the begin with but the problem is in this case what certainty is there? I mean, you asked for eight out of you said you had to a certainty eight hundred fifty nine thousand dollars worth of fees. You asked for three seventy one. So, okay, that's a step in one direction but where is the certainty there? And the judge is saying he still has problems with it. There is a certainty there because in counsel in being a client and deciding how to manage your case and being counsel and advising a client. You have some certainty that at the end of the day someone will look at the hours that were expanded on the case, multiplied by the billing rate. In this case, our billing rates were uncontested. There was no dispute about that and know that you're going to get a number in the end as opposed to the judge pulling a forty or fifty thousand dollar bonus out of the sky for a ten day jury trial. How can you counsel a client to that effect with any degree of confidence when there's not a single case in the courts of appeals or from the Supreme Court? It says a load star must be calculated in copyright cases. And in fact, a Fogarty, which I'm not sure why you didn't cite it and either your briefs, Fogarty, counsels otherwise. Supreme Court and Fogarty has said otherwise. Well, but Fogarty really concerned whether you get fees and not how you calculate them once you get them. Well, but it specifically distinguished the civil rights context from the copyright context. So is it sort of a sort of aggressive or presumptuous to just assume that you're going to get the same treatment regarding your fees as you would get if this were a 1983 action or civil rights case? The copyright acts as a reasonable attorney's fee. And a reasonable attorney's fee is what it would take to encourage litigation of a case by competent counsel. I would like to, if I may. If you were going to try to go through, if you were suggesting what factors we should look to. Yes. One factor that the district court used to justify its very low fee award was Dr. Vomula's level of culpability. The district court reduced the fee award because in the district courts view Dr. Vomula did not intend to harm ABIM. However, after 10 days of trial, the jury found that Dr. Vomula willfully infringed ABIM's copyrights. This is the highest level of culpability. The district court in the province of Plain and the jury's verdict. You are almost asking the same question I asked Ms. Rose. You're now the judge. Yes. Somebody brings you this type of case, whether the assessment of reasonable attorneys fees in a copyright case. I would apply the load star. That's the first factor. That's the starting point. The starting point is the load star. Then what would you do after that? Well, according to the Supreme Court in particular. You're writing on a clean slate here. What would you do after that? What would I do? I agree with Purdue that there's a strong presumption that the load star is reasonable. That can only be overcome in exceptional cases. This case, this is not one of the rare circumstances in which you would override. Purdue's a 1983 action. Just to help assume for a minute that you lose on that

. Well, but Fogarty really concerned whether you get fees and not how you calculate them once you get them. Well, but it specifically distinguished the civil rights context from the copyright context. So is it sort of a sort of aggressive or presumptuous to just assume that you're going to get the same treatment regarding your fees as you would get if this were a 1983 action or civil rights case? The copyright acts as a reasonable attorney's fee. And a reasonable attorney's fee is what it would take to encourage litigation of a case by competent counsel. I would like to, if I may. If you were going to try to go through, if you were suggesting what factors we should look to. Yes. One factor that the district court used to justify its very low fee award was Dr. Vomula's level of culpability. The district court reduced the fee award because in the district courts view Dr. Vomula did not intend to harm ABIM. However, after 10 days of trial, the jury found that Dr. Vomula willfully infringed ABIM's copyrights. This is the highest level of culpability. The district court in the province of Plain and the jury's verdict. You are almost asking the same question I asked Ms. Rose. You're now the judge. Yes. Somebody brings you this type of case, whether the assessment of reasonable attorneys fees in a copyright case. I would apply the load star. That's the first factor. That's the starting point. The starting point is the load star. Then what would you do after that? Well, according to the Supreme Court in particular. You're writing on a clean slate here. What would you do after that? What would I do? I agree with Purdue that there's a strong presumption that the load star is reasonable. That can only be overcome in exceptional cases. This case, this is not one of the rare circumstances in which you would override. Purdue's a 1983 action. Just to help assume for a minute that you lose on that. I assume that we don't feel that the load star has to be applied in a copyright case. Help us out with what factors we should apply. I would apply the factor of the defendant's level of culpability. I think that that is always very important in a copyright case. If the defendant is found to be a well-full infringer. I would argue that if the defendant is found to be a well-full infringer. That a court is not permitted to adjust the load star down. Because you would be so... You keep coming back to the load star. Okay, so the level of the bill... Both of you, I give you both credit for being zealous advocates. Because you're really not giving us any quarter up here. But I said I would start with the load star. I would start with the load star, the defendant's level of culpability. If you start with the load star, you can include complexity of the case. Because complexity of the case would already be in the load star. And there are the factors... Not necessarily. You could run up... You could have a four-week trial that under a load star analysis you incur a lot of fees. Because you have to put a lot of hours into the case. But the case isn't complex. It's a routine case

. I assume that we don't feel that the load star has to be applied in a copyright case. Help us out with what factors we should apply. I would apply the factor of the defendant's level of culpability. I think that that is always very important in a copyright case. If the defendant is found to be a well-full infringer. I would argue that if the defendant is found to be a well-full infringer. That a court is not permitted to adjust the load star down. Because you would be so... You keep coming back to the load star. Okay, so the level of the bill... Both of you, I give you both credit for being zealous advocates. Because you're really not giving us any quarter up here. But I said I would start with the load star. I would start with the load star, the defendant's level of culpability. If you start with the load star, you can include complexity of the case. Because complexity of the case would already be in the load star. And there are the factors... Not necessarily. You could run up... You could have a four-week trial that under a load star analysis you incur a lot of fees. Because you have to put a lot of hours into the case. But the case isn't complex. It's a routine case. So those two aren't mutually exclusive, are they? Well, they may not be mutually exclusive. But complexity of the case is subsumed in the load star in terms of the amount of time that you spend on. And complexity could be a vague, you know, a bigger term. I would also submit that in this case. But let me just ask you again. Can you just set aside the load star for a minute? What factors... I wrote down one. You gave us, you know, defendant's level of culpability. Are there others that we ought to... The trial judge ought to consider. Underleave... The factors are that... What is it? The level of culpability, the stakes in the case. And... What about degree of success? I would include degree of success. What about the state in which the infringing party finds herself or itself or itself? That seemed to play a role here. Right. I would not. And I would also argue that in this case that the district court's statement that because Dr. Van Uller lost her board certification, that that was a reason to, you know, to justify a low fee award, that is an abuse of discretion. Dr

. So those two aren't mutually exclusive, are they? Well, they may not be mutually exclusive. But complexity of the case is subsumed in the load star in terms of the amount of time that you spend on. And complexity could be a vague, you know, a bigger term. I would also submit that in this case. But let me just ask you again. Can you just set aside the load star for a minute? What factors... I wrote down one. You gave us, you know, defendant's level of culpability. Are there others that we ought to... The trial judge ought to consider. Underleave... The factors are that... What is it? The level of culpability, the stakes in the case. And... What about degree of success? I would include degree of success. What about the state in which the infringing party finds herself or itself or itself? That seemed to play a role here. Right. I would not. And I would also argue that in this case that the district court's statement that because Dr. Van Uller lost her board certification, that that was a reason to, you know, to justify a low fee award, that is an abuse of discretion. Dr. Van Uller lost her board certification because the jury found that she didn't... We're asking you... The jury found that she didn't earn it. And we have a few cases that none of us knows about. And we need a rubric in order to assess for future cases how one goes about determining whether a fee awarded in a copyright case is reasonable. Level of culpability, what is it stake in the case and degree of success? And did the judge consider those in this case? Well, he considered the level of culpability, but in that regard, it was an abuse of discretion because he supplanted his own version of the facts over the jury's verdict. And I would argue that that is an abuse of discretion. With respect to Dr. Van Uller's loss of her board certification, I think it's important to consider the broader potential aspect of actually considering this factor to reduce, as a, to reduce an attorney's fee award. When someone engages in copyright infringement and they do it to enhance their career or to earn money that they're not entitled to, the loss of the infringers' ill-gotten gains can't be a basis to reduce an award of attorneys fees. Otherwise, every single infringer who's forced to stop infringing gets the come to court and say, well, you know, but now I'm earning less money than I used to because I'm not essentially stealing anymore and breaking the law. So you should lower, you should lower the amount of attorneys. You have, but maybe there's an assessment here that the, the type of violation of the copyright wasn't something that's going to break the back of anybody. I mean, conceitably. I mean, is that a factor that the, the violation was not truly significant? In this case? No, in any case. I, I don't really see that as being a factor because Congress. So if somebody commits a small violation of a copyright act, they can have, they can, nonetheless have a major fee award against them. I'm not, I'm not sure what a small violation of the copyright. What if there were one question out of the 70, seven? Doesn't it make sense that trial judge would, would lower the fee for someone who's guilty of one infringing question rather than some of 21 questions? Well, first I, I do have to correct that there is nothing in the record that says that the jury found that Dr. Van Mule infringed 21 questions. And I don't know where a council gets. I do have to correct that. I don't know what council. How many did she inferring? We, we, ABIM, ABIM's position is that she alleged that, is that she infringed 50, the jury on the jury verdict sheet did not count the number of questions. Did not tally up the number of questions she infringed. So we don't know. Good point

. Van Uller lost her board certification because the jury found that she didn't... We're asking you... The jury found that she didn't earn it. And we have a few cases that none of us knows about. And we need a rubric in order to assess for future cases how one goes about determining whether a fee awarded in a copyright case is reasonable. Level of culpability, what is it stake in the case and degree of success? And did the judge consider those in this case? Well, he considered the level of culpability, but in that regard, it was an abuse of discretion because he supplanted his own version of the facts over the jury's verdict. And I would argue that that is an abuse of discretion. With respect to Dr. Van Uller's loss of her board certification, I think it's important to consider the broader potential aspect of actually considering this factor to reduce, as a, to reduce an attorney's fee award. When someone engages in copyright infringement and they do it to enhance their career or to earn money that they're not entitled to, the loss of the infringers' ill-gotten gains can't be a basis to reduce an award of attorneys fees. Otherwise, every single infringer who's forced to stop infringing gets the come to court and say, well, you know, but now I'm earning less money than I used to because I'm not essentially stealing anymore and breaking the law. So you should lower, you should lower the amount of attorneys. You have, but maybe there's an assessment here that the, the type of violation of the copyright wasn't something that's going to break the back of anybody. I mean, conceitably. I mean, is that a factor that the, the violation was not truly significant? In this case? No, in any case. I, I don't really see that as being a factor because Congress. So if somebody commits a small violation of a copyright act, they can have, they can, nonetheless have a major fee award against them. I'm not, I'm not sure what a small violation of the copyright. What if there were one question out of the 70, seven? Doesn't it make sense that trial judge would, would lower the fee for someone who's guilty of one infringing question rather than some of 21 questions? Well, first I, I do have to correct that there is nothing in the record that says that the jury found that Dr. Van Mule infringed 21 questions. And I don't know where a council gets. I do have to correct that. I don't know what council. How many did she inferring? We, we, ABIM, ABIM's position is that she alleged that, is that she infringed 50, the jury on the jury verdict sheet did not count the number of questions. Did not tally up the number of questions she infringed. So we don't know. Good point. Now let's go back to Judge Hardell's question. So the question, but I think that, I think that's already subsumed into the party's degree of success on the case. All right, but here's where it might not be. What if, what if take the same facts instead of Dr. Van Mule cheating to help herself get the board certification to use your words that she didn't earn? What if she was trying to publish these questions and make millions of dollars selling them to new test takers? Shouldn't that person be punished much more severely than Dr. Van Mule who was just cheating for her own benefit? Well, I mean from a copyright standpoint, you know that the photocopying, the mailing, the transmission, the dissemination. I mean, now that person I'm hypothesizing has really just ruined, ruined the integrity of the test. And ABIM has to go back to the drawing board and start all over again. So my answer to that is no. I don't view those two things as I don't view those two circumstances as requiring a different amount of attorneys fees and here's why because if you're going to be in a situation for example where you have someone who infringes copyrighted exam questions and there are a recalcitrant defendant and you have them. But they take you take them all the way to trial. Where is the public's interest here? Well, the public's interest is in making sure that no one cheats on the exam doesn't help other people cheat. Okay. If you only get a sizable damages award because it's a test prep company like PNBR, the National Board of Foreign Examiners, that case. If you only get substantial damages award there, then what happens is the law only encourages certifying bodies like ABIM to go after the big test prep companies when who's really harmed here. The public is hard because people are someone who has infringed exam questions and is cheated on an exam holds them out as board certified and when they're not. And certifying bodies should be encouraged to go after those infringers, that's the public interest just as much as a test prep company. And it happens to be in the circumstance that ABIM went after both ABIM went after both Aurora Board Review and individual physicians. Thank you very much. Thank you to both counsel for for your arguments in a in a difficult case. Thank you. Take a matter of advisement. Thank you.

Whenever you're ready. Good morning. May it please the court. My name is Harry Jacobs. I'm with the firm Ballard Spar. I represent the cross appellant, the American Board of Internal Medicine, which is known as ABIM. And what I'd like to do this morning is to address two main points today. Do you want to reserve any time for? Oh, yes. Thank you. Can I reserve five minutes for the bottle? That's fine. What I'd like to do is address two main points concerning the district court's errors that occurred in calculating ABIM's attorney's fees, both of which will require reversal. First is the district court's threshold error in failing to calculate a load star. And the second is the impermissible factors that the district court applied to purport to justify a very low fee award to ABIM. First, in terms of failing to calculate a load star, the district court itself expressly acknowledge the requirement to calculate a load star in page four of its opinion. I believe it even referred to the load star as the guiding light. Dr. Von Nuler also acknowledged the requirement to calculate a load star in her brief on appeal at pages 13 and 14. Well, don't you agree that even though a load star wasn't actually calculated here that under the copyright act, it's not necessary to have a load star determining the attorney's fees. No, Your Honor. I would not agree with that because I think it's very clear, particularly after the Supreme Court's opinion and Purdue, which is cited in our brief and was issued in 2010, that when regardless of what statute we're talking about, if it has a fee shifting provision, you have to calculate a load star. And this circuit has also said, I mean, this circuit pioneered a load star in lending. Well, the T-Pag case cop said under the Copyright Act in awarding attorneys fees, it's not necessary to do it with a load star. I am familiar with the T-Pag case from the first circuit, which was came down fairly recently. I don't believe, first of all, the T-Pag case, I don't believe follows Purdue. Second, the T-Pag case involved an award of attorney's fees to a defendant. It did not involve an award of attorney's fees to a plaintiff. It certainly didn't involve an award of attorney's fees in a case. Word of defendant was found to be a willful infringer. Well, the pregnant case also, the fifth, there's nothing in the Supreme Court, but it seems the circuits have stated that under the Copyright Act, the Discord can use a load star, but it's not required. It can use other methods. And the ninth circuit has done it in a not-presidential case, court-escalate URTIS. So is it necessary to have, if the District Court didn't want to use the, or what's going to, but didn't, is that an absolute error? Yes, the District Court's failure to calculate a load star is an error because the entire reason for calculating a load star is that it roughly approximates an actual fee, it permits meaningful review, and very importantly, you get reasonably predictable results. But you calculated the load star, did you not, in the, or your side, when you made the presentation to the judge here, right? Yes, we did. And then you did, did we, decreased it so it was, you're down to about 42% or something like that? A, A, B, I, M decided to request less money than it was entitled to. That is correct. And, I mean, it sounds, what your argument sounds like is, look, the judge here did a, you know, sort of a generic seat of the pants, I think there's an $80,000 judgment. I'm going to give you half of that in turnies fees, and that's it. And you're saying that that isn't the way one goes about calculating. You may end up with $40,000 in the end. We don't know. Well, you're on two points on that. Yes, I agree completely that the seat of the pants, I'll give you half the award. I'll give you half, I'll give you an attorney's fees, half of what the jury awarded is exactly what this court said in Washington. You can't do the district court cannot adjust council fees to maintain a certain ratio between the fees and that is. What, was that a copyright act? Yeah, it was a civil rights case. It was not a copyright attack. So that, doesn't that highlight that highlights, it seems to me the full-crum upon which our decision turns. Namely, must the attorney's fees provision in the copyright act be read analogously to the civil rights statutes? If the answer to that is yes, you win. If the answer to that is no, you may win or may lose. Isn't the civil rights act really qualitatively different? But before the answer, can you just answer my question? If you understand my question, there's a little convoluted. I believe I understand your question and here's the thing. I agree that the Civil Rights Act and the Copyright Act do not have identical purposes. It would be silly for me to stand here before you and to say otherwise. But here is what they have that is absolutely the same. They both have a provision that entitles a prevailing party to a reasonable attorney's fee. Section 505 of the Copyright Act says a court may award a reasonable attorney's fee. That section does not say that the court may award an arbitrary $40,000 or $50,000 bucks. All right, but now you're two levels below where I want to get to. So let's go back for a minute. If it's a civil rights case, this is an easy vacate agreement because they didn't do what we've said and other courts have said calculate the load star etc. So if this is not a civil rights, if it's not required to be analyzed under that, then what authority do you have to indicate that a load star calculation was required in this case? First, the district court itself acknowledged that a load star was... Maybe it mispoke. It's not a case law. You can't argue that there was a waiver and the district court is now bound by some stray comment that it may have made. What case support do you have to indicate that a load star must be calculated in a copyright act case? The reason why a load star should be calculated in a copyright case, exactly like it should be calculated in a civil rights case or an trade market case or in a patent case, it is because today it has widely been regarded, including by the Supreme Court, as the best way to calculate reasonable attorneys' fee because it roughly approximates the fee. It allows for meaningful judicial review because you know what the court did below and it brings about reasonably predictable results. That is... I put it on the flip side. I'm sorry. I put it on the flip side. There is no reason why the standard for a copyright case in terms of calculating attorney's fees should be any different. The purpose of the Copyright Act is to encourage creative works for the benefit of the public. That is exactly what ABIM does. Its exams are for the benefit of the public because the public relies on the outcome of those exams to select physicians. This is about protecting the public for the benefit of the public. There's a lot of cases in which a load star comes at the back end. It is a cross check. There are certain types of cases where a load star comes at the beginning, such as civil rights cases, but let's go back to Joe Chagam's question. How is... I guess it is 505 of the Copyright Act. How is that the same as or different than civil rights acts? Civil rights act on which the Washington decision was based. Well, the best of my question. As a matter of policy, you are saying... To the best of my understanding of the language is... To the best of my language, to the best of my understanding of the language is basically the same. The Court may award a reasonable attorney's fee. If a reasonable attorney's fee is the goal, the Supreme Court and this circuit that pioneered... But it starts off the Court May, so that is obviously... Right, so... ...that the Court had significant discretion. Right, and in this case, the Court already decided to award ABI and attorney's fees. That is a separate order that isn't even up on appeal before this Court. That is a totally separate decision that Judge Joyner issued in which he said, yes, given that the jury found that Dr. Vomjula was a willful infringer, and to promote compensation and deterrence, ABI is entitled to a reasonable attorney fee. That's a totally separate order, and then we have the order before us right now. That's correct, but you're correct that this can't be affirmed because there was... The District Court did not go forward on the calculating the fee and the method in which you indicated. But if it's not censored and have a load store, why can't this case be affirmed under the Fogarty and lead factors where no load store was calculated? And that was affirmed based on factors other than load store calculations. And the reason for that is that the factors that the District Court applied to justify the very low fee award are... Those factors are impermissible. Under load, under Fogarty and load their impermissible... Well, let me go through the factors and discuss them one by one. First is the first factor is damages. The factor of damages, the jury's award of damages, is really what is at stake in the case. What are the stakes in the case? In this case, the damages awarded by the jury do not reflect the enormous stakes in the case. For ABIM, the stakes were incredibly high. But it was protecting its most valuable property, the exam that it gives to measure whether a physician has the knowledge, the skills, and the judgment to be board certified. And for Dr. Van Uler, the stakes for her were enormously high. She lost the license. Well, she didn't lose her license. Board certification is not a license to practice. I'm sorry. Well, lost the valuable sort of board certification. The ability to specialize. Well, no, she can still practice gastroenterology. She's just not board certified. But for her, and she said this, you know, this is in the record, she wanted to clear her name. She wanted to punish ABIM, which was clear from the 11 counter claims that she brought against ABIM, and she lost on all of them. So the stakes in this case are very high to focus in award of attorney's fees just on the damages. There are many, many cases that I said. But let's go back to Judge Hardam's first question that he asked you that I'm not sure you answered. If we conclude that failure to calculate a load star, isn't fatal to a district court's fee decision under the Copyright Act. What happens to your position? The district court's decision is still reversed because given the factors that were applied, they, first of all, the facts that were applied to some of the factors are clearly erroneous. And I would submit that it is absolutely an abuse of. So then you have to have, okay, it's them what you're saying it's an abuse of discretion. It is an abuse of discretion. And I'd like to. I'm not sure if I hear it on the bottle or now, but look at what are those? What are those clearly erroneous findings of fact by the district court and what other evidence of abuse of discretion do you offer us? Okay. Another factor that the court applied I was addressing before that the district court expressly used the amount of damages that jury awarded that. Can we call that the proportionality? The proportionality is. But where's the case law that says again, let's, I know this is the biggest assumption because you disagree with it, but assume that we're not in the realm of civil rights act attorney's fees awards. What case law says that the district court cannot consider proportionality. There are. In fashioning a Justin and fair attorney's fees award. There are two cases that were decided by Judge Posner in the seventh circuit, which explicitly state that where the jury gives a low amount of damages. That's actually a reason that is a stronger reason to award attorneys fees and the reason. What statutes were an issue in those cases? That's copyright. They're both copyright cases. So comes to the back door through the measure of success in the litigation, even though it, even though you can't have proportionality between the fee and the award, but it's a question of whether or not the litigation was successful. Well, but in this case, the litigation was overwhelmingly successful because damages, the way that you've damages is one piece of that. And here the jury found that the defendant was a willful infringer. A.B.I.M. prevailed on 13 of the 14 claims in the case. Dr. Vomula was also seeking millions of dollars in damages because she claimed that she wasn't a cheater and that she wasn't an infringer. And she lost. A.B.I.M. won on all of that. And A.B.I.M. did obtain $91,000. A.B.I.M. did obtain $91,000 for infringement of 50 questions. I do see the red light, but I just, I really do want to go back to. We'll get you back on the robot. You'll get the back from that. We have five minutes. Okay. And you might be up longer than that. Okay. Thank you. Mr. Ellis. Good afternoon, Your Honours. My name is Glenn Ellis from laser free vault. And I have the privilege of representing Dr. Sarah Vomula in this appeal. The district court didn't... What's the argument that district court did it, you know, a gestalt theory here that, you know, it just feels right to do have. I mean, don't we need more than that? I mean, when you look at, for example, I mean, we've got some tough cases here where Evans v. Port Authority, which is a third certification, 2001, Judge Manesman wrote that we have to do a line by line analysis, which seems to be an awfully tough standard. Right, Your Honour. And this is a copyright case where there is no case that says the judge has to do a load star. And did the judge actually do a load star here and, uh, or did need to do a load star? Well, not being in the judge's chambers, what I believe happened is the judge issued his order saying, this is the kind of case I'm going to give attorneys fees. And in a footnote, he said, I'm going to give me a look, we're going to do a load star. Council, be conscious of the fact that you have to, you have a good faith, duty of excluding redundant and excessive billing. And submit it to me. And what the judge got was 200 pages of unclear and big, you as vague duplicate billing. But you're in the third circuit and the third circuit, again, back in the Evans case says that you cannot make findings of reasonableness based on a generalized sense of appropriateness. And it looks like the judge here made a, I mean, at least based on the record that we have looks like a generalized sense of what is appropriate. And aren't we bound by our president? Well, Your Honour, it appears that the court in his opinion cited to specific examples. And I believe he said there are two numerous examples. He cited to a lot of examples to show that there was duplication, but one could make a very easy repost to that and say that yes, but they discounted. The substantially the amount of fees requested initial or at least what their load star showed by what became about the 43% is what they actually requested. Well, Your Honour, it's their burden to submit the necessary and factual information to support their load star. They did and they discounted it. So they did it on their own. So it would seem to say that there was duplication. That is really kind of off the table because they took it off the table. Well, it's not clear other than saying we're going to seek less. We're going to cut 42% off. Why they cut the 42% off. But even if they say we're going to cut the 42% off. Did they ask for 43% or did they discount it by 42%? I think they discounted it by 42%. They said this is our number. And that was it. No, I thought the damages 42. This was 43. But rather it's not about the same point. The point is they discounted it significantly in terms of what they requested. And even knowing that the court looking at the information provided to it found that it was still unable after reviewing all 200 pages to find that the load star, the reasonableness of the hours extended were in fact reasonable. So the court turned the page knowing that it's not bound by deciding the case on load star. They court turned the page looked at the more reason to have a correct load star. It's sort of like in sentencing. I don't know if you know if you don't know if you know if it's criminal work, but in sentencing before you get to the third step, the actual sentence, you have to have a correct calculation of what the sentencing guidelines are. And here it seems that you need at least a correct calculation so that we know what we're dealing with apples versus apples with regard to the amount of time that exists or purposes of determining a proper fee award if one is proper at all. In this court, the district court who heard all of the evidence, who handled all of the cases because this was won in a number of cases that were brought against doctorate by any guy. I am that court is in the best position wasn't the best position to look at this load star request and realize it was foreign access. But don't you have to agree that the award had nothing to do with the load star. I mean that the judge was explicit about it. The judge said, I'm going to award attorneys fees equal to half the verdict. I mean that's that we don't have to speculate as to what the judge did here. The judge tied this attorney's fee award to a proportionality analysis that was one half the verdict, isn't that true? After the judge found that the evidence submitted didn't meet their burden, the judge then did go about reaching the number a different way. And he lamented or noted at least that what they were requesting was 22% excuse me the verdict they earned was only 22% of the fees that they were asking for. Right. So again, what drove this was, was Judge Ambrose suggested a feel? Well, a sense of what is equitable and just under the circumstances. I don't think the judge simply have the amount without thinking about the case. There's no doubt about the judge thought about the case. As we say where I go, ain't no doubt about it. But there is, but the question is, how do you go about it in a way in which it can be reviewed by somebody who decides to take a few? Well, in thinking about the case, the judge applied the factors from this court and lived and looked at the complexity of the case, the fact that there were multiple cases involved here which would provide judicial efficiency to the ABIM. And also at the success of the case, if he didn't use the load star, and obviously he did not use the load star this case, even though he said he was going to. Right. But he didn't use load star. Tell me what was the standard that he applied in determining what would be a reasonable attorney's thing. There's got to be a standard so that we can review that standard that he applied. That's $64.00. In the, in the, in the lives case, this court says that there are factors the courts should consider. And those are the factors the court considered in specific the court considered the complexity of the case, the court considered the fact that there were other cases, the court considered the deterrence factor and the court considered a lack of actual malice, the court considered a degree of success. Now, ABIM claims it's a great success. That's not what he said in the opinion that he gave. Well, that's not what he articulated as a reason for the, the, the, that's, that's good. The law that you're, you're taking off there, but that's not what he said was the basis for the fee award. Well, those are the things that he talked about. He talked about how the fact that there had been this award and the fact that this person had been put out of business would deter other doctors from doing what she had done. He talked about how there were multiple cases which would have provided efficiency to ABIM. He talked about how most of the discovery was gained through other individuals. Well, he mentioned this that this, just as he mentioned, the load star, but the, well, this was as Judge Ambrose said, the $64 question is what standard, if he didn't use the load star standards, what did he use? What did he use? Well, Your Honor, what I'm saying is he used the lives factors, which at the end of that opinion before the court moved on, the court said clearly that the district court is not bound to give an attorney's fee. That it's discretionary and that if the district court finds one is not necessary, that one doesn't have to be given. And in specific, the court states that if the district court concludes that fees are proper, it should then consider the relative simplicity of the defense. The judge did that here and whether the retention of out of town council with the company increased with necessary, that's not applicable here. But the sum request that is large and we note that it may be disproportionate to the amount at stake and excessive in light of the plaintiff's resources. The judge considered the proportionality. The problem you have is on page four and on footnote two, the judge acknowledges that the load star is presumed to be reasonable and in the footnote it has many virtues. And then it goes on and you need to calculate the load star and then the court doesn't do it. I mean, that's like a slam dunk. The court doesn't do it because it wasn't provided the information it needed by ABIM. And the court... And in the end, you may win, but we're talking about process here. No, I understand that, Your Honor. I agree that the court in its original order granting attorney's fees and its mind was going to apply a load star. In reviewing the documents provided by ABIM, the court obviously shifts gears and decides not to use a load star and is not bound to use it. But in the back of the court, pick yourself in our position. We've got precedent that says that load star is very important. So important that our circuit probably, maybe unlike any other, says that you need to go line by line. I mean, that's a toughy. The court says, yep, got to do a load star. And there's important reasons, important virtues as to why you should do a load star. And then doesn't do a load star. As a matter of process, what do you want us to do? Well, you want to do a good stall theory as well. Do your honor. But I think that the court was right in saying that here, the difference, this is a copyright case. And this copyright, under the Copyright Act, it's not the same as a Civil Rights Act or a class action. It's not the time I'm using it. You need to answer my question. I think the court should affirm because the court here didn't merely happen to be this particular. So we're saying that, you know what, even though this circuit requires load star, even though it requires a deep hard look at load star, the fact that it, and the court here acknowledges that the fact that it wasn't done, it's okay. Because, and in the future, the next case, when you're on the other side, don't worry about it. It's okay. You've got to somehow, every now and then, put yourself in our position as to what we would do and how we're not screwing it up for the next case down the road. You're not doing that. I think you're on of the court either has to take the hard line of saying that all of these kinds of cases where there's a fee shifting provision, a load star must be done, and the court must go through all 200 pages and eliminate the ones that it finds to be unreasonable. Or the court has to say, this is a copyright act case, and in the Copyright Act, the court has tremendous discretion to decide what the amount... You want us to say that the load star doesn't have to be calculated in copyright cases. I think that if it does, you lose, right? Well, your honor. If it does, then yes, are original below when we objected to the reasonable of the fees we actually said either the court should deny the fee petitioner send the ABIAM back to recalculate it. The court decided to say, well, the fees are unreasonable, but I can look and looking to page 11 of the court's opinion, the court says in arriving an appropriate award under the circumstances presented by this case, we consider those factors outlined by the third circuit. And in that, from page 11 to page 13, the court annunciates and enumerates why he reached that number. Now, it does... Which is not a load star approach. It's a totality of the circumstance. It is, your honor. It's looking at the case, having lived with the case, knowing, having looked through all 200 pages of the bills, and knowing what may happen in terms of the deterrence factor, in terms of what did happen to this person, and deciding that it in fact is an appropriate number. Now... You know what? And it may be an appropriate number. As I said before, this may go back, and this judge may do exactly the same thing, and it may be quite likely, maybe the right result. No problem, but there is a process that you have to go through. And that's what we're talking about here. We're not saying that this was the 40,000, it's ultimately the wrong number. And I realize your position as an advocate is to try to get it affirmed in the here and now. But we have to think about what happens down the road. And I don't have an answer for you, and you're not supplying me one of the stuff, why we should ignore the process that we normally have in place, in most cases, with respect to the awarding of fees. Well, I think the court said in other cases that have looked beyond the load star for deciding these kind of copyright cases. And here, you have to remember that the purpose of the copyright act is not for the judges. What you could have made is perhaps is that a, you know what, load star shouldn't be a front. It should be just a cross check. As in some other instances, it is. It's just a cross check for to be sure that you've arrived at a number that makes some sense. Well, that is what load stars, and that is what this court said, the court looked at the fees and said, well, you're requesting your award and damages is 22% of the fee of your load star. Your load star is obviously unreasonable. And in the court, not in a civil rights case. I mean, the cases are legion where not in the civil rights case, people get $100 and they get $50,000 in legal fees. Right. You're right. But the public policy driving the civil rights case is different than the public policy driving a copyright act, which is, which is all another way of saying you need to convince us. To apply a different standard in copyright cases. And that different standard is going to give trial judges substantially more latitude to fashion just inequitable fee awards than they would otherwise have in those civil rights cases. Correct. Yes, Your Honor. And I think that is a standard because the copyright act, the main purpose of the copyright act is not to protect authors. The main objective of the copyright act is to allow for progress and signs. And here, if you look at what happened here, this plaintiff was a, this defendant was accused of copying 77 questions. At the end of the day, she was only found to have infringed 21 if you, if you accept A B I M's interpretation of the jury's verdict sheet, which, which obviously, Dr. Vamila believes not her arguing she only treated on 21 questions, but it's not helps you. It's not a matter of cheating only on 21 questions. It's a matter that all those other questions that she was left to have bridged on. They now were part of the public domain. There has to be a place for people who are putting together review courses. They're, the people that are pretending to have the other review courses for doctors or former doctors who have sat for this exam. And if they're faced with the choice of, oh, maybe the question I'm crafting is an A B I M question and I'm going to be hit with hundreds of thousand dollars of attorney's fees, then they're not going to do that. So is your argument that one should take 21 over 77 and that should be the proportion that we do is there should be a proportionality test? Well, no, you're honored because that can't be, it can't be that. But what you have here is you have a jury coming out down the middle and judge Posner talked about toss up copyright cases in the assessment technologies case. And you have a jury coming down the middle saying look, this was half of the questions are, we'll give you half of the questions, but half of the questions she's accused of aren't in French. No, wait a minute, I'm talking about it. It isn't a toss up case. What this says is if you look back later, an individual was found by a jury to have violated the Comprehright Act with respect to 21 questions on a board specialization certification exam period. That's where it'll come down. That's history. The fact that it they argued there was more and the jury found less the historical fact is that this person was found to have violated the copyright with respect to 21 questions. Yeah, you're on with respect to 20, which is less than 50% of what you just said yourself. The argument that the path you're leading down doesn't help us. Well, I understand it doesn't help in setting a standard for the copyright act to do attorneys fees. So what standard would you have asked us to apply here? I think that the standard that should be applied is the discretion of the court to look at the factors listed. I understand that. Well, what standard should we apply in assessing whether the court has properly used this discretion? It's an abuse of discretion standard. No, no, no. If we're looking at an abuse of discretion standard, what factors should we take into account in order to decide whether there has been an abuse of discretion? Well, the factors should should be the award, the damages award. It should be a complexity of the case. It should be where do you start? The damages award? When you start, well, you could start at the damages award, then you move on to the complexity of the case. You move on to the deterrence after all copyright act is about deterring other infringers. Those are the kinds of factors that have already been laid out by this court. Was it a very specific case? No, your honor. The district court found that it wasn't a complex case. There were five witnesses. There were 11,000 pages of documents and there were no experts, according to ABIM. Even though Dr. Vomula had argued that one of their witnesses was technically an expert, ABIM argued that there weren't, so there were no experts reports, no expert depositions, five depositions, four of which ABIM defended. So this was not a complex case. And the jury awarded less than 50% of what ABIM did not have. What other factors should be taken into account? The damages, the complexity of the case, the deterrence effect. And what about the amount of attorneys fees that the other side expended? What about them? I think the court considered them in this case. I think they were presented to the court. The court looked at them and found that they were considered them after they were discounted down to 43%. I think they were actually discounted by 57%. I think the number, I believe that's the number. They asked the numbers discounted by 42% your honor. The damages was 42% of what they requested. But my understanding was that they claimed that the total amount they expended to litigate the copyright claim was $859,239. They requested $371,049, and that represents 43% of the $159,000 number. So they discounted by 57% to begin with. So one could make a pretty good argument, perhaps, that that takes account of the possibility of duplication. Well, the court still had to go through it, still had its obligation to go through it, and you could arrest them. You just put your finger right on it, has to go through it, has to go through it hard. And in this case, it found it unreasonable. But where, in this opinion, does it say that this is wrong or that's wrong, and this whole segment is wrong. The court, in its opinion, provides, does not provide a complete list of all of the issues with their fee petition granted, but the court, in its opinion, does set out several examples. For example, there's 108 hours billed for preparation of depositions and attendance of depositions. But is that, is that in the opinion? I mean, you may be, again, I emphasize, in page 9, you may have a, and maybe spot on with regard to the ultimate conclusion here, but we've got to have something a process by which we review it. Starting on page 9, your honor of his opinion, he lays out the issues that he finds with the fee petition, he finds issue with them meeting their burden of showing it's reasonable. Because by way of example on page 9. Yes, and then he provides examples on page 10. You have one on page 9. Two on page 9. You have one, two, three, four on page 10 that are put together. And then there's an additional example, so that's a way more. Finally, so he's about two pages of examples. I mean, it, it looks like, let's go back to Judge Hardam's point, it looks like what happened here is that this was a totality of the circumstances assessment. And that doesn't appear to be what we normally do. Well, I will not disagree that the judge is not list all of these issues he found with the billing. But I don't think that he under the Copyright Act is required to, unless this court is now going to apply a new standard. No. Copyright acts. Well, or a standard. Well, a standard that the judge has to apply the load star standard the same as the civil rights or class action cases to copyright actions. Where typically the judge is discretion as ruled as to whether any fees would apply. Any further questions? Thank you. We're here for Mr. Jacobs. In terms of the initial question, whether the load star should also be required in copyright cases added as it is required in many other types of cases. The simple answer is that yes, it should because the purpose of the fee shifting provision of the copyright act is to encourage litigation by competent counsel. Well, why could one can make an argument here that the load star becomes significantly diminished in terms of significance because you made the decision from at the outset to discount your fees by 57% or fees requested by 57%. We did a, a, b, I, and did agree to request a lower fee, but I don't see how that affects the process that a district court needs to go through in a copyright case. But if you had 859,000 that the load star would show and you're saying yourself that, okay, we're not requesting that we're requesting whatever is 371,000. Correct. So might that not put an arrow in the quiver of your opponent saying that the load star isn't as significant as it might otherwise be? No, you're honor because my client for its own reasons decided to request a lesser sum of money into which it was entitled under the law. That is what it decided to do. But in effect, you took the note, the argument, it couldn't have been because you thought it would be more persuasive that a case with five witnesses, you might have invoked the eye of a trial judge asking for almost a million dollars in legal fees. Well, that didn't influence the decision. It was just, it was just charity. Actually, in my view, a million dollars to take a copyright case to trial for a trial but last two weeks is the exact right amount of money. And what I would also like to discuss are the factors that the district court applied to justify its fieldward, one of which was. Before he gets that. Yes. Why under the Copyright Act, the load star is not absolutely required. If the district court had a standard under the Copyright Act that it wanted to apply other than the load scar and ticked off those various elements of the standard, why would that be sufficient without actually establishing a load scar and doing the usual load scar multiplication and factors? The load star should be required for cases under the Copyright Act like it is for all virtually all of their fee shifting statutes. There is no reason not to require it because it is the load star that enables an appellate court to have a proper appellate review and it there is also certainty that goes with that. Lawyers do date lawyers. Well, I mean, lawyers take copyright cases on contingency. Well, if there is a standard that is established other than the load star, why is that reasonable and why can't that be properly reviewed by a court of appeals? I am not aware of the standard other than the load star that is established. You said that the load star gives you certainty to the begin with but the problem is in this case what certainty is there? I mean, you asked for eight out of you said you had to a certainty eight hundred fifty nine thousand dollars worth of fees. You asked for three seventy one. So, okay, that's a step in one direction but where is the certainty there? And the judge is saying he still has problems with it. There is a certainty there because in counsel in being a client and deciding how to manage your case and being counsel and advising a client. You have some certainty that at the end of the day someone will look at the hours that were expanded on the case, multiplied by the billing rate. In this case, our billing rates were uncontested. There was no dispute about that and know that you're going to get a number in the end as opposed to the judge pulling a forty or fifty thousand dollar bonus out of the sky for a ten day jury trial. How can you counsel a client to that effect with any degree of confidence when there's not a single case in the courts of appeals or from the Supreme Court? It says a load star must be calculated in copyright cases. And in fact, a Fogarty, which I'm not sure why you didn't cite it and either your briefs, Fogarty, counsels otherwise. Supreme Court and Fogarty has said otherwise. Well, but Fogarty really concerned whether you get fees and not how you calculate them once you get them. Well, but it specifically distinguished the civil rights context from the copyright context. So is it sort of a sort of aggressive or presumptuous to just assume that you're going to get the same treatment regarding your fees as you would get if this were a 1983 action or civil rights case? The copyright acts as a reasonable attorney's fee. And a reasonable attorney's fee is what it would take to encourage litigation of a case by competent counsel. I would like to, if I may. If you were going to try to go through, if you were suggesting what factors we should look to. Yes. One factor that the district court used to justify its very low fee award was Dr. Vomula's level of culpability. The district court reduced the fee award because in the district courts view Dr. Vomula did not intend to harm ABIM. However, after 10 days of trial, the jury found that Dr. Vomula willfully infringed ABIM's copyrights. This is the highest level of culpability. The district court in the province of Plain and the jury's verdict. You are almost asking the same question I asked Ms. Rose. You're now the judge. Yes. Somebody brings you this type of case, whether the assessment of reasonable attorneys fees in a copyright case. I would apply the load star. That's the first factor. That's the starting point. The starting point is the load star. Then what would you do after that? Well, according to the Supreme Court in particular. You're writing on a clean slate here. What would you do after that? What would I do? I agree with Purdue that there's a strong presumption that the load star is reasonable. That can only be overcome in exceptional cases. This case, this is not one of the rare circumstances in which you would override. Purdue's a 1983 action. Just to help assume for a minute that you lose on that. I assume that we don't feel that the load star has to be applied in a copyright case. Help us out with what factors we should apply. I would apply the factor of the defendant's level of culpability. I think that that is always very important in a copyright case. If the defendant is found to be a well-full infringer. I would argue that if the defendant is found to be a well-full infringer. That a court is not permitted to adjust the load star down. Because you would be so... You keep coming back to the load star. Okay, so the level of the bill... Both of you, I give you both credit for being zealous advocates. Because you're really not giving us any quarter up here. But I said I would start with the load star. I would start with the load star, the defendant's level of culpability. If you start with the load star, you can include complexity of the case. Because complexity of the case would already be in the load star. And there are the factors... Not necessarily. You could run up... You could have a four-week trial that under a load star analysis you incur a lot of fees. Because you have to put a lot of hours into the case. But the case isn't complex. It's a routine case. So those two aren't mutually exclusive, are they? Well, they may not be mutually exclusive. But complexity of the case is subsumed in the load star in terms of the amount of time that you spend on. And complexity could be a vague, you know, a bigger term. I would also submit that in this case. But let me just ask you again. Can you just set aside the load star for a minute? What factors... I wrote down one. You gave us, you know, defendant's level of culpability. Are there others that we ought to... The trial judge ought to consider. Underleave... The factors are that... What is it? The level of culpability, the stakes in the case. And... What about degree of success? I would include degree of success. What about the state in which the infringing party finds herself or itself or itself? That seemed to play a role here. Right. I would not. And I would also argue that in this case that the district court's statement that because Dr. Van Uller lost her board certification, that that was a reason to, you know, to justify a low fee award, that is an abuse of discretion. Dr. Van Uller lost her board certification because the jury found that she didn't... We're asking you... The jury found that she didn't earn it. And we have a few cases that none of us knows about. And we need a rubric in order to assess for future cases how one goes about determining whether a fee awarded in a copyright case is reasonable. Level of culpability, what is it stake in the case and degree of success? And did the judge consider those in this case? Well, he considered the level of culpability, but in that regard, it was an abuse of discretion because he supplanted his own version of the facts over the jury's verdict. And I would argue that that is an abuse of discretion. With respect to Dr. Van Uller's loss of her board certification, I think it's important to consider the broader potential aspect of actually considering this factor to reduce, as a, to reduce an attorney's fee award. When someone engages in copyright infringement and they do it to enhance their career or to earn money that they're not entitled to, the loss of the infringers' ill-gotten gains can't be a basis to reduce an award of attorneys fees. Otherwise, every single infringer who's forced to stop infringing gets the come to court and say, well, you know, but now I'm earning less money than I used to because I'm not essentially stealing anymore and breaking the law. So you should lower, you should lower the amount of attorneys. You have, but maybe there's an assessment here that the, the type of violation of the copyright wasn't something that's going to break the back of anybody. I mean, conceitably. I mean, is that a factor that the, the violation was not truly significant? In this case? No, in any case. I, I don't really see that as being a factor because Congress. So if somebody commits a small violation of a copyright act, they can have, they can, nonetheless have a major fee award against them. I'm not, I'm not sure what a small violation of the copyright. What if there were one question out of the 70, seven? Doesn't it make sense that trial judge would, would lower the fee for someone who's guilty of one infringing question rather than some of 21 questions? Well, first I, I do have to correct that there is nothing in the record that says that the jury found that Dr. Van Mule infringed 21 questions. And I don't know where a council gets. I do have to correct that. I don't know what council. How many did she inferring? We, we, ABIM, ABIM's position is that she alleged that, is that she infringed 50, the jury on the jury verdict sheet did not count the number of questions. Did not tally up the number of questions she infringed. So we don't know. Good point. Now let's go back to Judge Hardell's question. So the question, but I think that, I think that's already subsumed into the party's degree of success on the case. All right, but here's where it might not be. What if, what if take the same facts instead of Dr. Van Mule cheating to help herself get the board certification to use your words that she didn't earn? What if she was trying to publish these questions and make millions of dollars selling them to new test takers? Shouldn't that person be punished much more severely than Dr. Van Mule who was just cheating for her own benefit? Well, I mean from a copyright standpoint, you know that the photocopying, the mailing, the transmission, the dissemination. I mean, now that person I'm hypothesizing has really just ruined, ruined the integrity of the test. And ABIM has to go back to the drawing board and start all over again. So my answer to that is no. I don't view those two things as I don't view those two circumstances as requiring a different amount of attorneys fees and here's why because if you're going to be in a situation for example where you have someone who infringes copyrighted exam questions and there are a recalcitrant defendant and you have them. But they take you take them all the way to trial. Where is the public's interest here? Well, the public's interest is in making sure that no one cheats on the exam doesn't help other people cheat. Okay. If you only get a sizable damages award because it's a test prep company like PNBR, the National Board of Foreign Examiners, that case. If you only get substantial damages award there, then what happens is the law only encourages certifying bodies like ABIM to go after the big test prep companies when who's really harmed here. The public is hard because people are someone who has infringed exam questions and is cheated on an exam holds them out as board certified and when they're not. And certifying bodies should be encouraged to go after those infringers, that's the public interest just as much as a test prep company. And it happens to be in the circumstance that ABIM went after both ABIM went after both Aurora Board Review and individual physicians. Thank you very much. Thank you to both counsel for for your arguments in a in a difficult case. Thank you. Take a matter of advisement. Thank you