Lack of personal jurisdiction leads to fee award in (c)/false advertising case

International Inst. of Management v. Organization for Econ.
Cooperation & Development, No. 2:18-cv-01748-JCM-GWF, 2019 WL 5578485 (D.
Nev. Oct. 29, 2019)
Not gonna lie, I’m here for the defendants, the OECD and Joseph
Stiglitz.   IIM, a small Nevada think tank, alleged that they
“stole credit” for IIM’s work on using non-GDP factors to measure the
well-being of countries. In 2005, IIM published a two-page paper titled “Gross
National Well-being (GNW) Index” that “generally discusses the idea of using
non-GDP factors to measure the well-being of countries and provides seven
factors that such an index might use,” but doesn’t show how to use them. A
second six-page paper in 2006, “The American Pursuit of Unhappiness,” is
similar.
The OECD’s Commission on the Measurement of Economic
Performance and Social Progress conducts research on measuring the well-being
of countries. Stiglitz, a resident of New York, is its chair and substantially
contributed to various reports and articles that the commission published. In
2009, it published a 291-page report titled “Report by the Commission on the
Measurement of Economic Performance and Social Progress,” “which discusses the
limits of GDP as an indicator of economic performance. The report also
extensively addresses problems with various measurement techniques and how to
improve upon existing methods to determine the well-being of countries.”  In 2011, the OECD created the Better Life Index, which uses non-GDP factors to
measure the well-being of countries, and published an interactive website that
millions of people have used to compare the well-being of countries. Stiglitz also
allegedly sells a book on Amazon.com which contains material from IIM’s works. IIM
sued for copyright infringement, vicarious/contributory copyright infringement,
unfair competition, and false advertising in violation of the Lanham Act (*cough*Dastar*cough*). 
Although this could’ve been a case testing what it means to
creatively compile facts, the court instead granted defendants’ motion to
dismiss for lack of personal jurisdiction. Defendants sought a fee award.
Defendants were prevailing parties under the Copyright Act even
though they didn’t get dismissal on the merits or dismissal with prejudice. The
relevant factors for whether there should be an award: objective
unreasonableness, degree of success obtained, absence of chilling effect, and
the need to advance considerations of compensation and deterrence. A claim is
objectively unreasonable where the party advancing it “should have known from
the outset that its chances of success in th[e] case were slim to none.”  Here, “IIM sought to hale a New York citizen
and a foreign organization into a Nevada federal court based on the bare
allegations that defendants operated the Better Life Index on a website, sold a
book with allegedly infringing materials on Amazon.com, and published the 2009
report online.” And, relying on “unambiguous Ninth Circuit authority,” the
court held that “merely uploading materials on a passive website and placing
products in the stream of commerce are not affirmative acts that directly
target Nevada.” Thus, the suit was objectively unreasonable.
Degree of success on the merits: “This dismissal does not
bar IIM from refiling in another jurisdiction, but it does terminate further
litigation in Nevada. While this is likely not defendants’ preferred outcome,
it is without question that they have obtained at least a modicum of success.”
Chilling effect: IIM didn’t argue that it lacked the
resources to pay an award or that it will be deterred from seeking to enforce
valid copyrights in the future. But IIM argued that an award would deter suits
against large-pocketed defendants. The court disagreed.  “That this case may have been brought in good
faith and was not dismissed on the merits has little bearing on whether victims
of copyright infringement will continue to bring suit. An award of attorney’s
fees here serves only to discourage suits without an objectively reasonable
basis for jurisdiction.”
Compensation and deterrence: “A successful defense furthers
the purposes of the Copyright Act just as much as a successful infringement
suit does.”
Overall, a fee award for the copyright claims was warranted.
Was this an exceptional Lanham Act case? Doesn’t matter,
because fees were warranted under the Copyright Act (and I infer that, because
the jurisdictional issue was the same for both, all work counts as work done on
the copyright claims).  But the court found
that fancy New York prices were unreasonable and instead used a lodestar of $400/hour
for counsel who charged more than that, and it also found that the total hours
billed were unreasonable for stating the hours of each individual in a single,
large increment of time, so it reduced the lodestar by 10%.  Total award for Stiglitz: a bit shy of $58,000
(plus costs).  For OECD: over $52,000
(plus costs).

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