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After obtaining court victories in several states against bans on video games deemed violent or sexually explicit, the industry is running up the score by collecting $1.5 million in attorney fees. The Entertainment Software Association (ESA), a Washington-based trade group representing computer and video game publishers, has filed all but one of the suits seeking to overturn new laws that ban the sale of violent or sexually explicit video games to minors. The $1.5 million in attorney fees has been ordered from three states, a city and one county, including $510,000 from Illinois and $180,000 from Michigan. Fee requests for a total of more than $200,000 are pending in Louisiana and Minnesota. Other recent video game victories include $318,000 in attorney fees from the city of Indianapolis, $180,000 in attorney fees from St. Louis County, Mo., and $344,000 from the state of Washington. The lion’s share of the fees has gone to a single law firm: Chicago-based Jenner & Block, which has handled most of the cases. “The attorney’s fees help make the point that states should look to other alternatives rather than making laws that are not constitutional,” said Gail Markels, senior vice president and general counsel of the ESA. In most cases, judges have issued preliminary or permanent injunctions against the new laws, claiming that they violate the free speech rights of video game publishers under the First Amendment. Defendants have cited studies and experts linking video games to violent behavior in children. Judges getting wise? Markels said the percentage of attorney fees approved by judges has grown as “courts are starting to recognize these laws aren’t constitutional from introduction, and there’s no question they’ll be stricken.” In Michigan, where a judge recently approved $180,000 in attorney fees, the case challenged the constitutionality of a 2005 law. Entertainment Software Association v. Jennifer H. Granholm, No. 05-73634 (E.D. Mich.). Separately, the ESA requested about $145,000 in attorney fees last month in a case brought over a 2006 Louisiana statute banning video games. In November, a federal judge granted a permanent injunction against the statute, which would have banned violent video games. Entertainment Software Ass’n v. Charles C. Foti Jr., No. 06-431 (M.D. La. 2006). In Minnesota, the ESA is seeking $73,000 in attorney fees after a judge granted a permanent injunction in July blocking a new law that would have banned violent video games. Entertainment Software Ass’n v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006). That request was put on hold after the state’s attorney general appealed to the 8th U.S. Circuit Court of Appeals. Paul Smith, a partner in the Washington office and co-chairman of the media and First Amendment practice area at Jenner & Block, which has handled all of ESA’s cases, said the legal work isn’t that simple. “This is fairly sophisticated First Amendment analysis, plus the states always bring up a raft of psychological studies from various professors attempting to show that video games are harmful to kids,” he said. Carol Murphy, deputy solicitor general for the Washington Attorney General’s Office, said the attorney fees were negotiated after some dispute. “They actually asked for quite a bit more,” she said. In November, in a case challenging the constitutionality of a 2005 Illinois statute, the 7th U.S. Circuit Court of Appeals upheld an earlier ruling finding for the video games. Entertainment Software Association v. Rod R. Blagojevich, nos. 06-1012, 06-1048, 06-1161 (7th Cir.). A federal judge in the case had issued a permanent injunction and ordered the state of Illinois to pay $510,000 in attorney fees to three plaintiff organizations, including the ESA. After the state officials had failed to pay, the judge issued an order in December 2006 requesting that the state of Illinois explain why, and how, it intended to pay the fees. Calls to the Illinois Attorney General’s Office were not returned.

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