A Locke Lord team represented Kayne Anderson Capital Advisors in a copyright infringement lawsuit in the Southern District of Texas involving Kayne’s practice of electronically forwarding a daily newsletter to more of its staff than allowed under the subscription agreement. Despite having only $300,000 in actual damages for lost subscription revenue, the plaintiff sought statutory damages of $750 to $150,000 on each of 1600 infringements (ranging up to $240 million) and additional claims for violations of the Digital Millennium Copyright Act (with statutory damages ranging up to $10 million). Locke Lord argued at trial that the plaintiff-publisher failed to mitigate its damages — intentionally running up damages in a “sue-the-client” business model that, for several years, had garnered more revenues than those from publishing — and that the publisher’s statutory award should be tied to its low actual damages. The verdict affirmed that the plaintiff failed to mitigate its damages, resulting in an award of only $585,000 total. And as a result of a strategic offer of judgment served early in the case Kayne’s liability may be completely negated. Additional Locke Lord team members included Roy Hardin, Scott Fuller, Jason Marlin, Seth Roberts, David Swanson, Peter Flynn, Sarah-Michelle Stearns and Joe Unis (all of Dallas), Glenn Pudelka (Boston), Steve Boyd and Tim Johnson (both of Houston) and Kelly Biggins (Los Angeles).
Posted December 14, 2017