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Tuesday, July 16, 2024 | Back issues
Courthouse News Service Courthouse News Service

‘Christmas Story’ Bully Gets Fee Award Slashed

(CN) - An actor who played a bully in "A Christmas Story" can recover just $300,000 in attorneys' fees from a royalty settlement, a federal judge ruled, saying his bid for more than $1.7 million "borders on the 'outrageous.'"

U.S. District Judge Margaret Morrow in Los Angeles heavily pruned the award sought by Zack Ward, who played the bully "Scut Farkus" in the iconic 1983 Christmas movie.

Twenty years after Ward appeared in the film, the National Entertainment Collectible Association (NECA) licensed the right to sell movie-based merchandise from Warner Bros. Consumer Products.

In 2006, Ward granted NECA the exclusive right to use his image on its merchandise, including an action figure and a board game, in exchange for a 2 percent royalty.

Ward sued NECA and sole shareholder Joel Weinshanker in 2010, claiming they owed him royalties and continued to use his image and likeness without his consent.

The defendants agreed to settle for $150,000 in January, and Ward sought more than $1.7 million in attorneys' fees under the Lanham Act and California's right-of-publicity law.

Ward argued that his case was "exceptional," because the defendants knew they had no right to use his photo or image but did so anyway. As proof, he claimed NECA had obtained purchase orders from Borders and Rite Aid before it even asked to use his image.

The defendants urged Morrow to simply toss the request as "outrageously excessive."

Morrow agreed that the fee demand "borders on the 'outrageous' given the excessive and duplicative billing practices it reflects," but said Ward was entitled to just over $300,000.

She said she took into account the request's "'excessive' and possibly 'outrageous' nature."

Ward sought $500 per hour for work performed by attorney Randall Newman, and between $360 and $790 per hour for the services of partners and associates at Wolf Haldenstein Adler Freeman & Herz LLP. He also asked for $205 to $280 per hour for paralegal work.

Morrow found an hourly rate of $400 more fitting for Newman, and said the partners' and associates' fees were on the high side but reasonable.

However, the judge took issue with what she said were "questionable billing practices."

For example, Newman claimed to have spent 90.3 hours on Ward's opposition to the defendants' motion for partial summary judgment.

"It strains credulity that Newman would reasonably have required more than 90 hours to prepare such a brief," Morrow wrote.

"Collectively, Wolf Haldenstein and Newman recorded 550 hours working on Ward's five motions in limine, which ranged in length from 5 to 14 pages. This huge expenditure of time is patently unreasonable," she later added.

Similarly, Morrow found it implausible that Ward's attorneys spent 450 hours preparing for the pretrial conference as they claimed.

"This evidence of excessive and duplicative billing is troubling," she wrote.

"The court also concludes that the number of attorneys who worked the case -- Newman, four Wolf Haldenstein partners, and two associates -- was unnecessary and excessive."

She slashed the number of hours worked by 75 percent, in part because she said too many partners were billing for work that should have been assigned to associates or paralegals.

Morrow calculated the final lodestar amount at $377,311, which she further cut by 20 percent based on Ward's limited success.

"Ward recovered only $150,000 of his $6 million prayer, or 2.5 percent," Morrow explained.

She awarded Newman $157,912 and Wolf Haldenstein $143,936, for a total of $301,848.

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