2022-cv-01512

COMPLAINT filed by Deckers Outdoor Corporation; Filing fee $ 402, receipt number 0752-19273177.

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

SEALED EXHIBIT by Plaintiff Deckers Outdoor Corporation Schedule A regarding complaint[1]

MOTION by Plaintiff Deckers Outdoor Corporation for leave to file under seal

CIVIL Cover Sheet

NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Deckers Outdoor Corporation

Notice of Claims Involving Trademarks by Deckers Outdoor Corporation

ATTORNEY Appearance for Plaintiff Deckers Outdoor Corporation by Justin R. Gaudio

ATTORNEY Appearance for Plaintiff Deckers Outdoor Corporation by Amy Crout Ziegler

ATTORNEY Appearance for Plaintiff Deckers Outdoor Corporation by Allyson M. Martin

ATTORNEY Appearance for Plaintiff Deckers Outdoor Corporation by Marcella Deshonda Slay

CLERK'S NOTICE: Pursuant to Local Rule 73.1(b), a United States Magistrate Judge of this court is available to conduct all proceedings in this civil action. If all parties consent to have the currently assigned United States Magistrate Judge conduct all proceedings in this case, including trial, the entry of final judgment, and all post-trial proceedings, all parties must sign their names on the attached Consent To form. This consent form is eligible for filing only if executed by all parties. The parties can also express their consent to jurisdiction by a magistrate judge in any joint filing, including the Joint Initial Status Report or proposed Case Management Order. (Text entry; no document attached.)

MAILED Trademark report to Patent Trademark Office, Alexandria VA.

MAILED to plaintiff(s) counsel Lanham Mediation Program materials.

MOTION by Plaintiff Deckers Outdoor Corporation for temporary restraining order including a Temporary Injunction, a Temporary Transfer of the Domain Names, a Temporary Asset Restraint, and Expedited Discovery

MEMORANDUM by Deckers Outdoor Corporation in support of motion for temporary restraining order 13

DECLARATION of Justin R. Gaudio regarding memorandum in support of motion 14

Exhibit 1

Exhibit 2

Exhibit 3

(Exhibit 4)

DECLARATION of Lisa Bereda regarding memorandum in support of motion 14

(Exhibit 1)

SEALED EXHIBIT by Plaintiff Deckers Outdoor Corporation Exhibit 2 - Parts 1-2 regarding declaration 16

Exhibit 2-1

(Exhibit 2-2)

SEALED EXHIBIT by Plaintiff Deckers Outdoor Corporation Exhibit 3 regarding declaration 16

MOTION by Plaintiff Deckers Outdoor Corporationfor Electronic Service of Process Pursuant to Fed. R. Civ. P. 4(f)(3)

MEMORANDUM by Deckers Outdoor Corporation in support of motion for miscellaneous relief 19

DECLARATION of Justin R. Gaudio regarding memorandum in support of motion 20

Exhibit 1

Exhibit 2

(Exhibit 3)

MINUTE entry before the Honorable Steven C. Seeger: The Court reviewed Plaintiff's motion for an ex parte temporary restraining order (Dckt. No. 13). The proposed minute order includes a request for an asset freeze. By August 19, 2022, Plaintiff must file a statement and point to the statutory provision that gives this Court the power to impose an asset freeze at the outset of the case. If Plaintiff cannot point to a specific statutory provision, then Plaintiff must address how its request for an asset freeze is consistent with Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999). In its memo, Plaintiff argues that "[c]ourts have the inherent authority to issue a prejudgment asset restraint when plaintiff's complaint seeks relief in equity." See Mem., at 13. In Grupo Mexicano, the Supreme Court held that a district court has "no authority to issue a preliminary injunction preventing [a defendant] from disposing of their assets pending adjudication of [plaintiff's] contract claim for money damages." Id. at 333. The Supreme Court adhered to the long-standing rule that "a judgment establishing the debt was necessary before a court of equity would interfere with the debtor's use of his property." Id. at 321. "However, the [Grupo] [C]ourt specifically noted that a restraint on assets was still proper if a suit sought equitable relief." See CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 996 (7th Cir. 2002) (citing Grupo, 527 U.S. at 333; Deckert v. Independence Shares Corp., 311 U.S. 282, 288 (1940)). "[A]s a general matter [] prejudgment asset restraints are not proper simply to establish a fund from which a later award of money damages can be satisfied." See Banister v. Firestone, 2018 WL 4224444, at *9 (N.D. Ill. 2018). An equitable restraint at the outset of the case might be doable if Plaintiff obtained equitable monetary relief at the end of the day, like an accounting of profits. See Deckers Outdoor Corp. v. Unincorporated Associations Identified on Schedule A, 2013 WL 12314399 (N.D. Ill. 2013). But as a practical matter, in Schedule A cases, that recovery almost never happens, if at all. Instead, plaintiffs rush into court, seek and obtain an asset freeze, obtain a default judgment, and then ask district courts to unfreeze the money and award statutory damages, not equitable relief. In that scenario, it is not clear to this Court that it would be appropriate to use any frozen funds for any recovery of statutory damages, because statutory damages are a remedy at law, not a remedy in equity. If Plaintiff believes that it is appropriate for this Court to freeze funds at the outset of the case, and then use those funds to recover statutory damages (not equitable monetary relief) at the end of the case, then Plaintiff must explain why. Mailed notice

STATEMENT by Deckers Outdoor Corporation per 22

MINUTE entry before the Honorable Steven C. Seeger: Plaintiff's motion for leave to file under seal (Dckt. No. 3) is hereby granted. Plaintiff's motion for electronic service of process (Dckt. No. 19) is hereby granted. Plaintiff's motion for a temporary restraining order (Dckt. No. 13) is hereby granted as stated in the forthcoming order. Temporary Restraining Order to follow. The response to the complaint is due 14 days after service of process. Mailed notice

SEALED TEMPORARY RESTRAINING ORDER Signed by the Honorable Steven C. Seeger on 9/9/2022. Mailed notice.

SUMMONS Issued as to Defendant The Partnerships and Unincorporated Associations Identified on Schedule "A" (Text entry; no document attached.)

SURETY BOND in the amount of $205,000.00 posted by Deckers Outdoor Corporation (Document not scanned)

MOTION by Plaintiff Deckers Outdoor Corporation for extension of time of Temporary Restraining Order

Declaration of Allyson M. Martin

MINUTE entry before the Honorable Steven C. Seeger: Plaintiff's ex parte motion to extend the temporary restraining order (Dckt. No. 26) is hereby granted in part. The Court grants a one-week extension of the TRO, through and including September 27, 2022. Mailed notice.

MOTION by Plaintiff Deckers Outdoor Corporation for preliminary injunction

Exhibit A

Declaration of Allyson M. Martin

(Exhibit 1)

SUMMONS Returned Executed by Deckers Outdoor Corporation as to The Partnerships and Unincorporated Associations Identified on Schedule "A" on 9/27/2022, answer due 10/18/2022.

Declaration of Marcella D. Slay

(Exhibit A)

MINUTE entry before the Honorable Steven C. Seeger: Plaintiff's motion for a preliminary injunction (Dckt. No. 29) is hereby granted. Preliminary injunction order to follow. Mailed notice.

PRELIMINARY INJUNCTION ORDER Signed by the Honorable Steven C. Seeger on 10/3/2022. Mailed notice.

EXECUTIVE COMMITTEE ORDER: GENERAL ORDER 22-0018: Pursuant that to the Executive Committee Order entered on September 9, 2022, the civil cases on the attached list have been selected for reassignment to form the initial calendar of the Honorable Nancy L. Maldonado; therefore IT IS HEREBY ORDERED that the attached list of 287 cases be reassigned to the Honorable Nancy L. Maldonado; and IT IS FURTHER ORDERED that all parties affected by this Order must review the Honorable Nancy L. Maldonado's webpage on the Court's website for the purpose of reviewing instructions regarding scheduling and case management procedures; and IT IS FURTHER ORDERED that any civil case that has been reassigned pursuant to this Order will not be randomly reassigned to create the initial calendar of a new district judge for twelve months from the date of this Order; and IT IS FURTHER ORDERED that the Clerk of Court is directed to add the Honorable Nancy L. Maldonado to the Court's civil case assignment system during the next business day, so that she shall receive a full share of such case; and IT IS FURTHER ORDERED that the Clerk of Court is directed to add the Honorable Nancy L. Maldonado to the Court's criminal case assignment system ninety (90) days so that Judge Maldonado shall thereafter receive a full share of such cases. Case reassigned to the Honorable Nancy L. Maldonado for all further proceedings. Honorable Steven C. Seeger no longer assigned to the case. Signed by Honorable Rebecca R. Pallmeyer on 10/03/2022.

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MINUTE entry before the Honorable Nancy L. Maldonado: This case has recently been reassigned to the calendar of the Honorable Nancy L. Maldonado. By 11/01/2022, the parties are directed to file an Initial Status Report for Reassigned Cases that complies with the Court's standing order, which can be found on the Court's website.

STATUS Report per 34 by Deckers Outdoor Corporation

ANNUAL REMINDER: Pursuant to Local Rule 3.2 (Notification of Affiliates), any nongovernmental party, other than an individual or sole proprietorship, must file a statement identifying all its affiliates known to the party after diligent review or, if the party has identified no affiliates, then a statement reflecting that fact must be filed. An affiliate is defined as follows: any entity or individual owning, directly or indirectly (through ownership of one or more other entities), 5% or more of a party. The statement is to be electronically filed as a PDF in conjunction with entering the affiliates in CM/ECF as prompted. As a reminder to counsel, parties must supplement their statements of affiliates within thirty (30) days of any change in the information previously reported. This minute order is being issued to all counsel of record to remind counsel of their obligation to provide updated information as to additional affiliates if such updating is necessary. If counsel has any questions regarding this process, this LINK will provide additional information. Signed by the Executive Committee on 12/29/2022: Mailed notice.

MOTION by Plaintiff Deckers Outdoor Corporation for entry of default, MOTION by Plaintiff Deckers Outdoor Corporation for default judgment as to all Defendants

(Exhibit A)

MEMORANDUM by Deckers Outdoor Corporation in support of motion for entry of default, motion for default judgment 37

(Exhibit 1)

DECLARATION of Justin R. Gaudio regarding memorandum in support of motion 38

Exhibit 1

Exhibit 2

(Exhibit 3)

MINUTE entry before the Honorable Nancy L. Maldonado:Any Defendant objecting to Plaintiff's motion for entry of default and default judgment [37] must enter an appearance and file a written objection by 01/30/2023. If no objections are filed, the Court will consider the motion unopposed and proceed to schedule a default judgment hearing. Plaintiff shall electronically serve Defendants with this notice and the motion for entry of default and default judgment [37] by 01/16/2023.

CERTIFICATE of Service by Plaintiff Deckers Outdoor Corporation regarding text entry, 40

(Exhibit A)

MINUTE entry before the Honorable Nancy L. Maldonado:Having received no objection to Plaintiff's motion for entry of default and default judgment 37, the Court directs the Clerk to enter default against all Defendants. A default judgment prove-up hearing is scheduled for March 16, 2023 at 10:30 a.m. via WebEx video conference. However, based on its review of Plaintiff's memorandum in support of its motion for default judgment, the Court has determined it requires supplemental briefing and materials from Plaintiff prior to the hearing supporting its request for $500,000 in statutory damages per defaulting defendant. This Court makes a reasoned, evidence-based, and individualized assessment of statutory damages for each defaulting defendant based on their particular conduct. See, e.g., Este Lauder Cosmetics Ltd. v. P'ships and Unincorporated Ass'ns Identified on Schedule A, 334 F.R.D. 182, 186 (N.D. Ill. 2020) ("[A]n online store that shows thousands of reviews for a counterfeit product probably sold much more of that product than an online store with zero reviews for it, and the more prolific seller should be tagged with a larger damages award"). While Plaintiff has provided a particularized argument and justification for damages with respect to Defendant hortonway.com, it has not done the same for the other 204 defendants. Based on the Court's review of the record, many of the other 204 defendants sell different types of products at different price points and at varying volumes (insofar as volume of sales can be inferred from evidence such as store reviews or number of products offered). For example, the infringing products here appear to range from items as low as $10 each to items in excess of $100 each, and the individual defendant's online stores appear to have different inventories and selections of products, suggesting differing scales of operations. Based on this record, an across-the board award of $500,000 per defaulting defendant is excessive and not particularized to any individual defendant's conduct. Therefore, by March 2, 2023, Plaintiff shall file a supplemental memorandum in support of its motion for default judgment that includes an individualized damages assessment on a defendant-by-defendant basis. Specifically, Plaintiff should provide a chart that lists all of the Defendants and the amount of statutory damages sought against each individual Defendant, and which provides a summary for each Defendant of the information supporting their particular statutory damages amount, including the size and scope of the Defendant's operations, the price range of the counterfeited products sold, and any other information that supports the sought statutory damages award. The information in the summary should be supported by citations to exhibits submitted with the briefing to avoid the time-consuming effort of this Court searching the record for factual support in prior filings. At the hearing, Plaintiff's counsel should be prepared to address the statutory damages amount sought, and the evidence showing that the award sought is reasonable for each defendant. The dial-in number for the public is: 650-479-3207; Access code: 23091273577. The parties will receive a Webex invitation by email. During the video hearing, the parties should turn off their cameras and mute their microphones until their case is called. All persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in court-imposed sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.

ATTORNEY Appearance for Plaintiff Deckers Outdoor Corporation by Justin Tyler Joseph

MEMORANDUM memorandum in support of motion 38 by Deckers Outdoor Corporation Supplemental

(Exhibit A)

DECLARATION of Justin R. Gaudio regarding memorandum 44

Exhibit 1

Exhibit 2

Exhibit 3

(Exhibit 4)

MOTION by Plaintiff Deckers Outdoor Corporation to Enter and Continue Hearing on Motion for Entry of Default and Default Judgment

(Exhibit A)

MINUTE entry before the Honorable Nancy L. Maldonado: The Court is in receipt of Plaintiff's motion to continue hearing on its motion for default judgment 46. The motion is granted, and the default judgment hearing currently set for 03/16/2023 is reset to 04/13/2023 at 11:00 a.m. via Webex video conference. The dial-in number for the public is: 650-479-3207; Access code: 23018456302. The parties will receive a Webex invitation by email. During the video hearing, the parties should turn off their cameras and mute their microphones until their case is called. All persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in court-imposed sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.

MOTION by Plaintiff Deckers Outdoor Corporation to Enter and Continue Hearing on Motion for Entry of Default and Default Judgment

(Exhibit A)

MINUTE entry before the Honorable Nancy L. Maldonado: Plaintiff's motion to enter and continue hearing on motion for entry of default and default judgment 48 is granted for the reasons stated in the motion. The hearing date of 4/13/23 is stricken and the hearing is reset for 5/3/23 at 10:00 a.m. via WebEx video conference. The dial-in number for the public is: 650-479-3207; access code is: 23054157692. The parties will receive a WebEx invitation by email. During the video hearing, the parties should turn off their cameras and mute their microphones until their case is called. All persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in court-imposed sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.

NOTICE of Voluntary Dismissal by Deckers Outdoor Corporation as to certain defendants

EXHIBIT by Plaintiff Deckers Outdoor Corporation Updated Exhibit 1 regarding declaration[45]

MINUTE entry before the Honorable Nancy L. Maldonado: Pursuant to the notice of voluntary dismissal [50], Plaintiff's claims against Defendants easytsave.com, hortonway.com, looketik.com, and modersay.com, are dismissed without prejudice, with leave to reinstate within 270 days from the date of this order. If no motion for leave to reinstate is filed within 270 days, the dismissals as to these defendants will convert automatically to a dismissal with prejudice.

MINUTE entry before the Honorable Nancy L. Maldonado: Motion hearing held on 5/3/2023 on Plaintiff's motion for entry of default and default judgment 37. The Court has taken Plaintiff's motion for entry of default and default judgment under advisement and will rule by CM/ECF. Plaintiff shall promptly email the Courtroom Deputy a revised proposed final judgment order in Word reflecting the amounts they are seeking against the remaining Defendants alone.

MINUTE entry before the Honorable Nancy L. Maldonado: Plaintiff's motion for entry of default and default judgment 37 is granted. Defendants have failed to appear or respond to the complaint, and failed to appear or otherwise object to entry of default judgment, despite being provided notice and the opportunity to be heard. Default judgment is entered in favor of Plaintiff and against all Defendants listed on Schedule A to the forthcoming Judgment Order, which will be entered separately. Plaintiff is awarded $7,800,000.00 total in statutory damages; the specific individual statutory damages awards against each defendant are listed in Schedule B to the forthcoming Judgment Order. The Court has awarded less than Plaintiff's requested amount of statutory damages for most of the Defendants. Although Plaintiff attempted to group Defendants into different broad categories based on their conduct, Plaintiff generally did not explain the basis for (or provide any calculations supporting) the requested statutory damages amounts for each individual Defendant based on that particular Defendant's conduct. The Court therefore awarded statutory damages it deemed appropriate based on the limited information and argument before it. Judgment entered. Civil case terminated.

FINAL JUDGMENT ORDER Signed by the Honorable Nancy L. Maldonado on 8/30/2023.

NOTICE of withdrawal of surety bond 27 by John Summerfield (Received at the Intake Counter on 3/29/2024)