Super Duper, Inc. v. Mattel, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1397
SUPER DUPER, INCORPORATED, d/b/a Super Duper Publications,
Plaintiff - Appellant,
v.
MATTEL, INCORPORATED, a Delaware Corporation,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:05-cv-01700-HFF)
Argued: March 24, 2010 Decided: June 10, 2010
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE & BOYD, PA,
Greenville, South Carolina, for Appellant. Thomas Henderson
Dupree, Jr., GIBSON, DUNN & CRUTCHER, LLP, Washington, D.C., for
Appellee. ON BRIEF: W. Howard Boyd, Jr., Jennifer E. Johnsen,
Adam C. Bach, GALLIVAN, WHITE & BOYD, PA, Greenville, South
Carolina; Steven R. LeBlanc, DORITY & MANNING, P.A., Greenville,
South Carolina, for Appellant. Dace A. Caldwell, GIBSON, DUNN &
CRUTCHER, LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mattel, Incorporated (“Mattel”) opposed the registration of
several of Super Duper, Incorporated’s (“Super Duper”)
trademarks in the United States Patent and Trademark Office
(“USPTO”) based on their alleged infringement of Mattel’s pre-
existing marks. After the parties’ efforts to reach a
settlement failed, Super Duper filed a declaratory judgment
action in the United States District Court for the District of
South Carolina, requesting the court rule that its trademarks
did not violate Mattel’s intellectual property rights. Mattel
counterclaimed, alleging that Super Duper had engaged in
trademark infringement, trademark dilution, unfair competition,
and fraud upon the USPTO.
After a week-long trial, a jury found that Super Duper’s
use of seven trademarks infringed upon and/or diluted four of
Mattel’s preexisting marks and awarded Mattel $400,000 in
damages. 1 Post-trial, Super Duper renewed its motion for
judgment as a matter of law and Mattel moved for a permanent
1
The jury concluded that Super Duper’s use of its SEE IT!
SAY IT!, SAY AND SING, FISH AND SAY, FISH & SAY, SORT AND SAY,
SORT & SAY, and SAY AND SORT trademarks infringed Mattel’s SEE
‘N SAY, SEE ‘N SAY JUNIOR, SEE ‘N SAY BABY, and THE FARMER SAYS
marks. The jury also concluded that Super Duper’s use of its
SEE IT! SAY IT!, SAY AND SING, FISH AND SAY, FISH & SAY, SORT
AND SAY, SORT & SAY, and SAY AND SORT trademarks was likely to
dilute Mattel’s famous SEE ‘N SAY and THE FARMER SAYS marks.
2
injunction, order of cancellation, increased profits, and an
award of attorneys’ fees and costs. The district court denied
Super Duper’s motion but granted those of Mattel by increasing
the damages award to $999,113 and providing Mattel with
$2,643,844.15 in attorneys’ fees. Super Duper filed a timely
appeal and we have jurisdiction under 28 U.S.C. § 1291.
On appeal, Super Duper challenges (1) the district court’s
denial of its motion for judgment as a matter of law,
(2) multiple instructions submitted to the jury, and (3) the
district court’s award of increased profits and attorneys’ fees.
Our review of the record reveals no error requiring reversal.
Accordingly, we affirm the judgment of the district court.
I.
We review de novo Super Duper’s initial argument that the
district court erred in denying its motion for judgment as a
matter of law on Mattel’s claims for trademark infringement and
trademark dilution. See Dotson v. Pfizer, Inc., 558 F.3d 284,
292 (4th Cir. 2009). Judgment as a matter of law is appropriate
only when “there is no legally sufficient evidentiary basis for
a reasonable jury to find for the non-moving party." Int’l
Ground Transp., Inc. v. Mayor & City Council of Ocean City, 475
F.3d 214, 218 (4th Cir. 2007) (quotation omitted). In
considering the evidence presented at trial, we do “not make
3
credibility determinations or weigh the evidence,” as
“[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000) (quotation omitted).
After reviewing the record in the light most favorable to
Mattel and disregarding all evidence favorable to Super Duper
“that the jury [was] not required to believe,” id. at 150-51, we
cannot say that the evidence “supports only one reasonable
verdict.” Dotson, 558 F.3d at 292 (quotation omitted). The
evidence presented at trial was sufficient for the jury to
conclude that the simultaneous use of Mattel’s and Super Duper’s
marks would (1) create a likelihood of confusion in the mind of
an “appreciable number of ordinarily prudent purchasers”
regarding the “source of the goods in question,” Perini Corp. v.
Perini Constr., Inc., 915 F.2d 121, 127 (4th Cir. 1990)
(quotations omitted), and (2) “‘impair[] the distinctiveness of
[Mattel’s] famous mark[s].’” Louis Vuitton Malletier S.A. v.
Haute Diggity Dog, LLC, 507 F.3d 252, 264 (4th Cir. 2007)
(quoting 15 U.S.C. § 1125(c)(2)(B)).
In regard to trademark infringement, Super Duper argues,
inter alia, that Mattel failed to offer any evidence of actual
confusion over a significant period of concurrent use of the
marks and that there are many distinctions between its business
4
and products and those of Mattel. We find these arguments
unpersuasive. While it is true that a lack of “evidence of
actual confusion over a substantial period of time” may create
“a strong inference” of no likelihood of confusion, CareFirst of
Maryland, Inc. v. First Care, P.C., 434 F.3d 263, 269 (4th Cir.
2006), the absence of such proof does not preclude a party from
proving a likelihood of confusion based on a compilation of
other evidence. It is, after all, “well established that no
actual confusion is required to prove a case of trademark
infringement.” 2 Louis Vuitton, 507 F.3d at 263.
Furthermore, under these facts, the inference to be drawn
from Mattel’s lack of evidence of actual confusion was a matter
properly submitted to the jury. See Reeves, 530 U.S. at 150(noting that gleaning “inferences from the facts” is a “jury
function[]”). Super Duper places great emphasis on the fact
that its marks were in use for five-to-nine years before the
start of trial in 2008, and that Mattel produced no evidence of
2
See also CareFirst, 434 F.3d at 269 (“[P]roof of actual
confusion is not necessary to show a likelihood of confusion
. . . .”); Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463
(4th Cir. 1996) (“[E]vidence of actual confusion is
unnecessary.”); Lone Star Steakhouse & Saloon, Inc. v. Alpha of
Va., Inc., 43 F.3d 922, 933 (4th Cir. 1995) (“[T]his Court has
emphasized that a trademark owner need not demonstrate actual
confusion.”); AMP Inc. v. Foy, 540 F.2d 1181, 1186 (4th Cir.
1976) (“[A]ctual confusion is not an essential element in
establishing a likelihood to confuse . . . .”).
5
actual confusion during that time. Mattel, however, first
challenged Super Duper’s use of its trademarks in the USPTO in
2004. The jury could reasonably conclude that Mattel’s
administrative challenge affected the manner in which Super
Duper used and publicized its marks during the relevant period.
We also reject Super Duper’s assertion that the jury should
have weighed additional likelihood-of-confusion factors
differently, such as differences in the parties’ products,
marks, and facilities. Because the likelihood-of-confusion
analysis “depends on varying human reactions to situations
incapable of exact appraisement,” we treat the likelihood of
confusion as an “inherently factual issue that depends on the
facts and circumstances in each case.” Lone Star Steakhouse &
Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 933 (4th Cir.
1995) (quotations omitted). As a “cross-section of consumers,”
the jury is particularly “well-suited to evaluating whether an
‘ordinary consumer’ would likely be confused.” Anheuser-Busch,
Inc. v. L&L Wings, Inc., 962 F.2d 316, 318 (4th Cir. 1992).”
Our function on appeal is not to “weigh the evidence,” but to
determine if the “record as a whole” supports the jury’s
verdict. Reeves, 530 U.S. at 150-51. We conclude that Mattel
met that standard.
Super Duper’s arguments in relation to Mattel’s trademark
dilution claims fare no better, as they primarily focus on the
6
lack of survey evidence and expert testimony as to the
likelihood of dilution. Our precedent does not support the
proposition that the successful prosecution of a trademark
dilution claim mandates the production of survey evidence or
expert testimony. See Louis Vuitton, 507 F.3d at 266 (“To
determine whether a junior mark is likely to dilute a famous
mark through blurring, the TDRA directs the [trier of fact] to
consider all factors relevant to the issue, including six
factors that are enumerated in the statute . . . .”). Of
course, such evidence may prove helpful to the jury, but it is
not required. Cf. id. at 266 (“Not every factor will be
relevant in every case, and not every blurring claim will
require extensive discussion of the factors.”).
As we have explained, the jury was well situated to make
the factual determination that Mattel’s marks were “famous,”
that sufficient similarity existed between Super Duper’s and
Mattel’s marks, and that this association was likely to impair
the distinctiveness of Mattel’s “famous” marks. See id. at 264-
65. The Trademark Dilution Revision Act (“TDRA”) requires
nothing more, see 15 U.S.C. § 1125(c), and we are prohibited
from reweighing the evidence or drawing inferences from the
facts. See Reeves, 530 U.S. at 150.
7
II.
We now turn to Super Duper’s claims that multiple
instructions submitted to the jury failed to correctly state the
law and require reversal of the judgment. “[I]t is well settled
that a trial court has broad discretion in framing its
instructions to a jury.” Volvo Trademark Holding Aktiebolaget
v. Clark Mach. Co., 510 F.3d 474, 484 (4th Cir. 2007). We
accordingly review the district court’s jury instructions only
“for abuse of discretion,” although we “review de novo claims
that the jury instructions failed to correctly state the law.”
Id. Affirmance is required so long as the instructions given by
the district court, “taken as a whole,” “adequately state the
controlling law.” Id. (quotation omitted). In other words, we
will reverse based on “error in jury instructions only if the
error is determined to have been prejudicial, based on a review
of the record as a whole.” Abraham v. County of Greenville, 237
F.3d 386, 393 (4th Cir. 2001) (quotation omitted).
Super Duper first contends that the district court’s
instructions eliminated Mattel’s burden of proving a likelihood
of confusion by a preponderance of the evidence. We disagree.
While the district court erred in instructing the jury that
“[a]ny doubt regarding the outcome of the likelihood of
8
confusion analysis must be resolved in favor of Mattel,” 3 Joint
Appendix (“J.A.”) at 2001, the jury instructions as a whole
adequately and correctly stated the controlling law.
For example, the district court informed the jury that
“Mattel ha[d] the burden of proving” the elements of a trademark
infringement claim “by a preponderance of the evidence” and the
jury was instructed to find in Super Duper’s favor if “Mattel
failed to prove any of” the requisite elements of a trademark
infringement claim. Id. at 1998. The special verdict form also
specifically asked the jury to determine whether “Mattel ha[d]
proven by a preponderance of the evidence that any of Super
Duper’s trademarks . . . infringe[d] Mattel’s trademarks.” Id.
at 2034. Super Duper is accordingly unable to establish that
the district court’s error was “prejudicial” in light of the
“record as a whole.” 4 Abraham, 237 F.3d at 393 (quotations
omitted).
3
As the Supreme Court explained in KP Permanent Make-Up,
Inc. v. lasting Impression I, Inc., 543 U.S. 111 (2004), the
defendant in a trademark-infringement suit “has no free-standing
need to show confusion unlikely” and is merely required “to
leave the factfinder unpersuaded that the plaintiff has carried
its own burden on that point.” 543 U.S. at 120-21.
4
In light of our opinion in AMP Inc. v. Foy, 540 F.2d 1181(4th Cir. 1976), we also reject Super Duper’s challenge to the
district court’s instruction that if the jury found Mattel’s
trademarks to be strong marks, “Super Duper’s trademarks (as the
latecomer) must be substantially different from Mattel’s
trademarks to avoid a finding of infringement.” J.A. at 2012;
(Continued)
9
Next, Super Duper argues the district court erred in
instructing the jury that a lack of “evidence of actual
confusion” is a “factor [that] is neutral and does not favor
either party.” J.A. at 2013. We have already recognized that
whether there was a significant period of concurrent use of
Super Duper’s and Mattel’s marks without any evidence of actual
confusion was a factual matter best left to the jury’s
determination. See Reeves, 530 U.S. at 150 (recognizing that
“the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge”). Accordingly, the district court did not abuse its
discretion in instructing the jury that an absence of evidence
of actual confusion, in and of itself, was a neutral factor. 5
see AMP Inc., 540 F.3d at 1187 (citing “a respectable body of
authority” that holds that “the second comer has a duty to so
name and dress his product as to avoid all likelihood of
consumers confusing it with the product of the first comer”)
(emphasis added) (quotation omitted).
5
The district court did not abuse it discretion in refusing
to grant Super Duper’s request for a sophisticated user
instruction, as Sharon Webber, the co-owner of Super Duper,
testified at trial that Super Duper sold its goods to the
“[v]ery general public.” J.A. at 675. Nor did the district
court abuse its discretion in instructing the jury that the
“ultimate consumers of Super Duper’s products” were “children.”
Id. at 2013; see Lyons Partnership, L.P. v. Morris Constumes,
Inc., 243 F.3d 789, 802 (4th Cir. 2001) (holding that “the
similarity of child-oriented works must be viewed from the
perspective of the child audience for which the products were
intended”) (quotation omitted).
10
See AMP Inc., 540 F.2d at 1186 (“[A]ctual confusion is not an
essential element in establishing a likelihood to confuse
. . . .”).
Super Duper also contends that several aspects of the
district court’s instructions suggested that the jury could
impose liability based solely on the similarity of Super Duper’s
and Mattel’s trademarks. But see Commc’ns Satellite Corp v.
Comcet, Inc., 429 F.2d 1245, 1252 (4th Cir. 1970) (“Resemblance
of the marks is not alone sufficient to establish the likelihood
of confusion.”). On appeal, however, “we do not view a single
instruction in isolation; rather we consider whether taken as a
whole and in the context of the entire charge, the instructions
accurately and fairly state the controlling law.” United States
v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996). We conclude that, in
this case, the instructions given to the jury fairly state the
controlling law.
For example, the district court’s instruction regarding the
elements of a trademark infringement claim specified seven
factors the jury should consider in reaching its verdict:
(1) the strength of Mattel’s trademarks, (2) the similarity of
Mattel’s and Super Duper’s trademarks, (3) the similarity of the
goods that the trademarks identify, (4) the similarity of the
parties’ business facilities, (5) the similarity of the parties’
advertising, (6) Super Duper’s intent in selecting its
11
trademarks, and (7) any actual confusion between Super Duper’s
and Mattel’s products or trademarks. Only the second factor
related to “the similarity of Mattel’s trademarks and Super
Duper’s trademarks.” 6 J.A. at 2000. Furthermore, the court
clearly explained that “[t]he presence or absence of any
particular factor . . . should not necessarily resolve whether
there is a likelihood of confusion” because the jury “must
consider all [of the] relevant evidence.” Id.Moreover, the district court’s specific instruction on the
factor relating to the similarity of the parties’ trademarks
clarified that “[t]rademarks are not to be evaluated in a side
by side comparison test,” such as “a meticulous comparison in
court.” Id. at 2008. Rather, “[i]t is the overall impression
created by the trademark from the ordinary consumer’s cursory
observation in the marketplace that will or will not lead to a
likelihood of confusion.” Id. (emphasis added). It was thus
made clear to the jury that all relevant market-related factors
6
While the district court erred in giving an instruction
that fleetingly referred to the “similarity” between Super
Duper’s and Mattel’s trademarks, J.A. at 2000, Super Duper
failed to lodge an objection on this basis in the district
court. Our review is consequently only for plain error, see
United States v. Jeffers, 570 F.3d 557, 564 n.4 (4th Cir. 2009),
and Super Duper cannot establish that this overlooked comment
caused it prejudice. See United States v. Stitt, 250 F.3d 878,
884 (4th Cir. 2001) (noting that “actual prejudice [is] required
by the third prong of plain-error review”).
12
must be taken into account in determining whether marks are
similar and whether a likelihood of confusion ultimately exists.
That the district court instructed the jury that
“similarities” in the parties’ marks “weigh more heavily than
differences,” J.A. at 2008, does not alter our analysis.
Although we have stated that, in assessing the similarity of
marks, courts do not “confine their scrutiny merely to
similarities,” Petro Stopping Ctrs., L.P. v. James River
Petroleum, Inc., 130 F.3d 88, 94 (4th Cir. 1997), the district
court’s instruction did not remove the marks’ dissimilarities
from the jury’s consideration. Indeed, the jury’s search for
similarities between Super Duper’s and Mattel’s marks would
necessarily reveal the marks’ dissimilarities, as similarity and
dissimilarity are but two sides of the same coin.
Super Duper’s argument as to the district court’s mark-
pairings instruction similarly lacks merit. The instruction in
question simply stated that “the mere presence of a house mark,
e.g., the name Super Duper, does not avoid a finding of
likelihood of confusion as between two marks.” Id. at 2008. In
short, this instruction correctly explained that placement of
Super Duper’s house mark on its product packaging did not ipso
facto foreclose the possibility that a likelihood of confusion
existed between Super Duper’s trademarks and those of Mattel.
See CareFirst, 434 F.3d at 271-72 (recognizing that the effect
13
of a mark pairing depends on the strength of the allegedly
infringed mark, as well as any “differences in the public
presentations of the[] marks” that would “significantly reduce
the likelihood of confusion”).
III.
Finally, Super Duper contests the district court’s award of
increased profits and attorneys’ fees to Mattel. Super Duper’s
argument in this regard is predicated on the section of the TDRA
that specifies that a plaintiff prevailing under the likelihood
of dilution standard may only recoup profits, damages, costs,
and attorneys’ fees if “the mark . . . that is likely to cause
dilution by blurring . . . was first used in commerce by the
person against whom [relief] is sought after October 6, 2006.”
15 U.S.C. § 1125(c)(5)(A). Although Super Duper is correct that
its trademarks were in use before October 6, 2006, Super Duper
failed to raise anything remotely resembling this argument in
its Rule 50(a) motion for judgment as a matter of law. See
Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2617 n.5 (2008)
(“A motion under Rule 50(b) is not allowed unless the movant
sought relief on similar grounds under Rule 50(a) before the
case was submitted to the jury.”). We accordingly review this
issue only for plain error. See Price v. City of Charlotte, 93
F.3d 1241, 1248-49 (4th Cir. 1996).
14
Under the facts of this case, we decline to exercise our
discretion to correct the error. 7 See Olano, 507 U.S. 725, 732
(1993) (noting that “the decision to correct [a] forfeited error
[is] within the sound discretion of the court of appeals, and
the court should not exercise that discretion unless the error
‘seriously affect[s] the fairness integrity or public reputation
of judicial proceedings.’” (quoting United States v. Young, 470
U.S. 1, 15 (1985))). The award of profits and attorneys’ fees
and costs in this case was independently justified by the jury’s
conclusion that Super Duper’s use of seven trademarks infringed
four of Mattel’s preexisting marks. See 15 U.S.C. §§ 1117(a) &
1125(a).
We recognize that the jury awarded no damages based on its
finding of trademark infringement. But the award of $999,113 in
lost profits now at issue was made by the district court, rather
than the jury. Section 1117(a) specifically provides that, in
cases like the one currently before us in which a plaintiff
establishes trademark infringement under § 1125(a), “[i]f the
court . . . find[s] that the amount of the recovery based on
profits is either inadequate or excessive the court may in its
7
See also Corti v. Storage Tech. Corp., 304 F.3d 336, 341
(4th Cir. 2002) (“Before we can exercise our discretion to
correct an error not raised below in a civil case, at a minimum,
the requirements of United States v. Olano, 507 U.S. 725 (1993),
must be satisfied.”).
15
discretion enter judgment for such sum as the court shall find
to be just, according to the circumstances of the case.” In
this case, the district court found the jury’s award of $400,000
in lost profits inadequate and increased the award to $999,113,
the amount of lost profits Mattel’s expert testified was
attributable to Super Duper’s seven infringing marks.
Super Duper has simply failed to establish that the
district court’s award of lost profits would have differed had
it not considered the jury’s finding of trademark dilution.
Accordingly, we decline to exercise our discretion to correct
the district court’s error in regard to the award of profits
under the TDRA. 8 See Stitt, 250 F.3d at 884 (noting that “actual
8
We reject Super Duper’s contention that the district court
erred in increasing Mattel’s award of lost profits. The
district court’s ruling in this regard is consistent with the
equitable factors laid down in Synergistic International, LLC v.
Korman, 470 F.3d 162, 175 (4th Cir. 2006), and does not
constitute an abuse of discretion. See Metric & Multistandard
Components Corp. v. Metric’s, Inc., 635 F.2d 710, 715 (8th Cir.
1980) (“[T]he district court is given broad discretion to award
the monetary relief necessary to serve the interests of justice
. . . .”). Nor are we persuaded that the court erred in failing
to put a more restrictive time limitation on Mattel’s award of
lost profits. Indeed, Super Duper’s reliance on our opinion in
Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789(4th Cir. 2001) is misplaced. Although Lyons established that
“the doctrine of laches may be applied to equitable claims
brought under the Lanham Act,” 243 F.3d at 799 (emphasis
omitted), Mattel did not unreasonably delay in instituting its
Lanham Act claims; therefore, the doctrine of estoppel by laches
does not apply. See What-A-Burger of Va., Inc. v. Whataburger,
Inc., 357 F.3d 441, 449 (4th Cir. 2004) (“Indeed, the key
question, for purposes of estoppel by laches, is not simply
(Continued)
16
prejudice [is] required by the third prong of plain-error
review”) (quotation omitted); see also United States v.
Robinson, 460 F.3d 550, 557 (4th Cir. 2006) (“[A]n appellant on
plain error review bears the burden of persuasion with respect
to prejudice.”).
We further conclude that the district court did not err in
determining that this was an “exceptional case” thus rendering
the award of attorneys’ fees appropriate under 15 U.S.C.
§ 1117(a). The district court adopted the reasoning set forth
in Mattel’s petition for attorneys’ fees in concluding that this
case was “exceptional.” In tandem with the district court’s own
observation that the “jury considered . . . overwhelming
evidence of [Super Duper’s] wrongdoing and determined that it
both infringed and intentionally diluted certain of [Mattel’s]
marks,” J.A. at 2708, the reasons stated in Mattel’s attorneys’
fees petition are sufficient to uphold the district court’s
ruling that this was an “exceptional case.” See Retail Servs.,
Inc. v. Freebies Publ’g, 364 F.3d 535, 550 (4th Cir. 2004)
(recognizing that an “exceptional case” is “one in which the
defendant’s conduct was malicious, fraudulent, willful or
deliberate in nature” (quotation omitted)).
whether there has been some delay, but whether that delay was
unreasonable.”) (emphasis in original).
17
Because Super Duper failed to preserve its objections to
the specific billing items it contests on appeal and/or to cite
to any portion of the record demonstrating that Mattel, in fact,
recouped the associated attorneys’ fees, we further hold that
the district court did not abuse its discretion in granting
Mattel’s request for attorneys’ fees in the amount of
$2,643,844.15. See Am. Reliable Ins. Co. v. Stillwell, 336 F.3d
311, 320 (4th Cir. 2003) (“[W]e review a district court’s
decision awarding or denying attorney’s fees and costs for abuse
of discretion.”). Super Duper has simply “provided us with no
[valid] basis . . . to discern the degree to which it believes
the district court abused its discretion,” Jean v. Nelson, 863
F.2d 759, 772 (11th Cir. 1988), and “[w]e will not make
arguments for [a party] that it did not make in its briefs.”
O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1257 n.1 (10th
Cir. 2001) (citing Fed. R. App. P. 28(a)(9)(A)). Accordingly,
we find Super Duper’s “argument without evidence unpersuasive,
and conclude that the district court acted within its discretion
in approving” the attorneys’ fees “described in the evidence
before it.” Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d
1387, 1389 (11th Cir. 1997); see also Norman v. Hous. Auth. of
the City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988)
(“As the district court must be reasonably precise in excluding
18
hours thought to be unreasonable or unnecessary, so should be
the objections and proof from fee opponents.”).
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
19