J THIS CAUSE Comes Before the Co Rt on the Parties' Post-Trial Motions

$' 't ! Case 1:09-cv-21893-WMH Document 387 Entered on FLSD Docket 10/24/12 16:30:19 Page 1 ' : j) of 63 ': q .' j' t è t UNITED STATES DISTRICT COURT ) SOU TH ERN DIS ICT 0F FLORIDA è CA SE NO ) . 09-21893-C1 -HOEV ELER/TU RN O FF r ( T M ICH AEL CH OW known as GMR. CH O ', et a1., r) Plaintifs/counter-Defendants, ( V. ) : è CHAK YAM CH AU, et a1., ) . j Defendants/counter-plaintifs ( . , / y. O RD ER ON PO S .TRIAL MO TION S I j THIS CAUSE comes before the Co rt on the parties' post-trial motions. The 't l Court heard argument from counsel on M y 9, 11, and 16, 2012, and has considered y ! ! ) : all relevant portions of the record. As ad ressed in more detail below, the Court ') has determined that there is no basis for isturbing the jury's verdict, with the l I exception of one item: the jury ,s award of 500,000 to Plaintiff Chow individually, ! 1 w hich the Court has determined must be et aside. The Court also finds that this t case is not the type of ''exceptional'' case t justify attorneys' fees under the Lanham ! r : ! . Act for any party, and the Court denies, ithout prejudice to renew at the ë appropriate time, the Defendants' reques for attorneys' fees pursuant to Florida t ) ) statute. Costs will be aw arded to Plainti TC Ventures, Inc., as to the false advertising claims, and as to Defendants n all Counts as to which they prevailed , and as to which costs are taxable. j ( t ) PROCEDURAL BACKGROUND ' Plaintiffs filed this case in 2009, al eging multiple counts of trademark ) è ( I Case 1:09-cv-21893-WMH Document 387 Entered on FLSD Docket 10/24/12 16:30:19 Page 2 of 63 infringement and other acts relating to De endants' operation of competing restaurants which allegedly copied aspects of the d$Mr Chow'' restaurants.l Defendants included the original investors who started the competing restaurants in 2005, including the founding chef, Defe dant Chak Yam Chau, who formally changed his name in 2006 to Philippe Cho Chau, and whom previously had been employed for 25 years in Plaintiffs' New Y rk restaurant. Other Defendants included the corporations operating the re taurants, a recent investor in the Defendants' California restaurant, and ot er chefs and a maitre d' employed by the D efendants' restaurants. The original co plaint included nineteen daims. Three weeks after the original com laint was filed, Plaintiffs amended their com plaint, adding specific claims for civil respass and eorporate espionage, alleging that ttan Asian male disguised in a chef s j cket entered the premises of the Mr Chow Restaurant Ein Miami Beach) witho t authorization and proceeded into the Mr Chow kitchen.'' ECF No. 15, ! 79.2 O November 19, 2009, the Court dismissed l'l'he Court has endeavored to refer to the Plaintiffs' restaurants consistently as (dMr Chow'' restaurants, as the evidenc indicated that the restaurants' name is styled ïdMr'' instead of ddMr.'' (similarly, Pl intiff Mr Chow Enterprises, Ltd.). The original trademark registration, effective uly 7, 1981, was as to (dMr. Chow,'' see United States Patent and Trademark Of ce (ï'USPTO''), Reg. No. 1,160,402, and that is the only tradem ark as to which Pl intiffs elected to pursue their claims at trial. Plaintiffs' Third Am ended Complai t also sought to prosecute claims as to other trademarks, Dkt. No. 134, ! 74, e.g , the mark 'dMr Chow'' was registered on January 6, 2009, see Reg. No. 3,558,956, ut Plaintiffs ultimately elected not to pursue any claims related to those trade arks. zAccording to the First Am ended C m plaint, the alleged trespasser conducting dtcovert and other surveillanc activity'' was an aequaintance of one of Plaintiffs' longtime chefs and asked for t at chef by nam e; Plaintiffs alleged that the person was sent there for the dssole p rpose of spying on behalf of the Defendants' Miami Beach restaurant. E F No. 15, !! 83. The Court references 2 l Case 1:09-cv-21893-WMH Document 387 Entered on FLSD Docket 10/24/12 16:30:19 Page 3 )! of 63 1 @. j 1 the specific claims of trespass and espio age l , without prejudice to refile the specific 1 1 claims with sufficient support - which aintiffs failed to do 1 .3 1) A Second Amended Complaint w s filed on December 3, 2009, adding, làter 1 i lia claims for tortious interference wit Plaintiffs' em ployee relationships .,qjj;. -'i!!!EEii!l!,,- , and j'-'iq. ji breach by Defendants' Chefs of alleged ( written Confidentiality Agreements'' 1 1 purportedly signed by those Chefs. EC No. 42 1 , !! 43, 173. Defendants then filed / 1 a Counterclaim for defam ation against he Plaintiffs and also against Eva Chow l (wife of Michael Chow) and Michelle Ch n (an empl ; oyee of the Plaintiffs' L. restaurants and the sister of Eva Chow) ECF No. 119: the Court dismissed jl , without prejudice, the Countexclaim as to Mrs. how and Ms. Chun in an Order entered on l @ April 5, 2010. 1 Finally, on April 13, 2010, a Thir Amended Complaint was filed, w ith C 1 f fif ' v sixteen claims against a tota o teen efendants. ECF No. 134. This Court had t ' jurisdiction over the federal and state cl ims ) , pursuant to 28 U.S.C. jj 1331, 1338, ) and 1367. Defendants answered the co plaint and some Defendants filed 7 I terclaims ag 1 coun ainst som e of the Plain iffs, including another claim for defam ation ) against Mrs. Chow and Ms. Chun - simi ar to the previously filed claim but ) l l.. t y these allegations as a dem onstration of t e extrem ely adversarial posture of these . t' parties since at least the beginning of th's litigation. ' t 3'l'he Third Am ended Com plaint - he operative complaint - ' does not include a ( specific claim of espionage but includes a legations of corporate espionage as a type t of common 1aw unfair competition (along with misrepresentation unlawful methods of compensati , false advertising, on, etc., CF No. 134, 5 154), and alleges that Defendants agent or apparent agent e gage No. 134, ! 77). q ' L. g ) t t è :':j),'' ''' .. ? . Case 1:09-cv-21893-WMH Document 387 Entered on FLSD Docket 10/24/12 16:30:19 Page 4 of 63 ( 1j jtl supported by additional factual allegatio s. Dkt. Nos. 170, 195.4. After extensive discovery disputes (some of which were resolved only after ! )- 1') the parties ,counsel were ordered by Ma istrate Judge W illiam Turnoff to spend l 1)' several hours in the court's jury room to esolve their differences), and unsuccessful ) motions to dismiss and for summary jud ment mrought by Defendants and by ( i Counter-Defendants), the case was tried to a jury over a period spanning five weeks in January and February 2012. The Co rt entered several rulings before and during trial which eliminated certain cl ims and counterclaims,s and other claims ('. were abandoned by Plaintiffs, such that a total of twelve claims were before the , 2 ) jury, as to ten o efendants. The jul'y found Defendants Davé 0 NYC, lnc., and Stratis Morfogen )q r. -11)--l 4lnterestingly, the Defendants' la est-filed Answer and Mfirmative Defenses lj does not include the Counterclaims (wh ch ultimately were tried before the jury). j According to the record, Defendants file an Amended Answer and Affirmative j Defenses and Amended Counterclaim ( CF No. 170), and then filed a tdcorrected'' 1 Am ended Answer and Mfirmative Defe ses (ECF No. 195), which removed 1j Affirmative Defense 69 so that it could e filed under seal. The Corrected filing also 3 itted the Counterclaims, but Plainti s already had responded to the 0mCounterclaims as stated in the earlier- led Am ended Answer and Am ended Counterclaim, and have not argued tha the om ission of the Counterclaims in the 1j Corrected filing was critical. I s'rhe court granted the Defenda ts' motion for summary judgment as to any 1j alleged tortious interference with the r lationship between Plaintiffs and Plaintiffs, j employees (Count XIV). See Order dat d January 20, 2012. (Plaintiffs had claimed j? that Defendants 'dsolicited chefs and ot er key employees'' of Plaintiffs' restaurants 11 fïto leave Plaintiffs' em ploy to work in efendants' copycat restaurant.'' ECF No. ) 134, ! 79.) The Court also granted the motion for summary judgment filed by Eva j Chow and Michelle Chun as to Defend nts:, Counterclaim for Defam ation q (Counterclaim I), and granted the Plai tiffs'/counter-Defendants' motion for t summ ary judgment as to Counterclai I11 (damages for false or fraudulent registration of the trademark). See Or er dated January 20, 2012. 1 1 4 1 1 1 1 Case 1:09-cv-21893-WMH Document 387 Entered on FLSD Docket 10/24/12 16:30:19 Page 5 (( of 63 ; responsible for false advertising and unfai competition by deceptive conduct as to : Plaintiffs TC Ventures, lnc. (owner of the r Chow restaurant on 57th Street in ( New York City), and Michael Chow, indivi ually, but rejected a11 other claims and j ( counterclaims. The jury awarded $520,45 to TC Ventures, Inc., and awarded $500,000 to Michael Chow, individually. he Court deferred entering final ) è judgment - as agreed to by the parties - un il resolution of the multiple post-trial è m ot j Ons.

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