Champion Products v. Silver ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-2006
CHAMPION PRODUCTS INC.,
Plaintiff, Appellee,
v.
ARTINE ASDOURIAN, ETC., ET AL.,
Defendants, Appellees.
BENTON SILVER, d/b/a Variety Wholesalers,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Steven R. Whitman on brief for appellant.
Mark Schonfeld, Nicholas J. Psyhogeos, and Sherburne, Powers &
Needham, P.C. on brief for appellee Champion Products Inc.
December 16, 1997
Per Curiam. We have reviewed the record on appeal and
the submissions of the parties. Appellant Benton Silver
("Silver") conceded liability under the Lanham Act, 15 U.S.C.
1051 et seq., and now challenges the court's calculation
of damages and attorney's fees against him. We find no abuse
of discretion in the calculation of damages. See 15 U.S.C.
1117(a). Where an award based on profits would be
inadequate, "the court may in its discretion enter judgment
for such sum as the court shall find to be just, according to
the circumstances of the case." 15 U.S.C. 1117(a). Where
a defendant has acted fraudulently and/or "palmed off"
inferior goods, the court may assess damages based on an
unjust enrichment or deterrence theory. Aktiebolaget
Electrolux v. Armatron Int'l, Inc., 999 F.2d 1, 5 (1st Cir.
1993).
We also review cost and attorney's fees awards for abuse
of discretion. Volkswagenwerk Aktiengesellschaft v.
Wheeler, 814 F.2d 812, 821 (1st Cir. 1987). The affidavit
and documentation supporting the request for attorney's fees
here provided no detailed, contemporaneous time records, as
required by Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952
(1st Cir. 1984). Since we have not applied the Grendel's Den
standard in any previous Lanham Act case, we will not reduce
or disallow the fee award, as that case recommends. Instead,
we remand to the district court, with instructions to provide
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plaintiff an opportunity to submit detailed, contemporaneous
time records. To the extent possible, plaintiff's
submissions should identify attorney time expended while
pursuing the claim against Silver. Silver should be given an
opportunity to respond to plaintiff's submissions.
Affirmed in part, vacated in part, and remanded for
further proceedings consistent with this opinion.
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