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June 17, 2010 3:03 PM

Drinker Biddle Wins $1.34 Million in Fee Feud with Pepper Hamilton Over Trademark Case

Posted by Ed Shanahan

By David Bario

We've been around long enough to know that almost nothing gets litigators fired up hotter than a good fight over fees. But a tussle between Pepper Hamilton and Drinker Biddle over fees generated by a trademark case was fierce enough to win even our jaded attention.

As The Am Law Litigation Daily's Alison Frankel reports, on June 11 a federal judge in Philadelphia awarded Drinker more than $1.34 million in attorneys' fees stemming from a trademark battle between Urban Outfitters and BCBG Max Azria.

The award capped four years of litigation between Pepper client BCBG and Drinker client Urban Outfitters, which had sued BCBG in 2006 over a planned clothing line that Urban Outfitters said violated its Free People trademark. Drinker, which accused Pepper of "litigation misconduct" and accused BCBG of "chicanery" in the course of the case, won an injunction against BCBG, and the U.S. Court of Appeals for the Third Circuit affirmed.

But as Frankel reports, the appellate court remanded the case to determine whether Drinker should be awarded attorneys' fees. That's when things really began to heat up. After Philadelphia federal district court judge Michael Baylson awarded Drinker part of its $1.4 million fee request, Pepper shot back that Drinker and Urban Outfitters had committed misconduct of their own. Drinker responded by seeking sanctions against BCBG, alleging that Pepper's claims were made in bad faith.

In a case already dripping with nasty rhetoric, Pepper's reply brief to Drinker's sanctions motion ratcheted things up even further. "Plaintiffs' efforts to silence, censor, and/or intimidate defendants' counsel, while shameless, is at least consistent with their relentless efforts to deny defendants due process," the brief says. "Plaintiffs are apparently prepared to discard not only the Fifth and Fourteenth Amendments, but now the First as well. Perhaps they will next suggest some 'cruel and unusual punishment' and dispense also with the Eighth."

Pepper's motion apparently didn't do much to sway Judge Baylson. He awarded Urban Outfitters's full request of $1.34 million, plus $5,000 for the fee litigation. Lawyers for Drinker and Pepper did not respond to the Lit Daily's requests for comment.

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