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In what both sides agree may be the largest award of attorney fees ever in a copyright case, a federal judge in Houston has awarded Compaq Computer Corp. more than $2.7 million. On April 12, U.S. District Judge Melinda Harmon denied a motion to reconsider an earlier decision that Ergonome Inc. and its two principals, Stephanie Brown and Thomas Mowrey, pay Compaq $2,765,026 in attorney fees in a copyright infringement action between the two companies. Harmon also ordered Ergonome’s former attorney, Kent Rowald, and his two former, now-defunct firms, Vaden, Eickenroht & Thompson and Felsman, Bradley, Vaden, Gunter & Dillon, to reimburse Compaq $101,822 in attorney fees for “unreasonable and vexatious conduct” during discovery. In 1993, Brown wrote a book published by Ergonome, a New York ergonomics training company and publisher, entitled “Preventing Computer Injury: The HAND Book.” Ergonome and Brown alleged in a lawsuit that Compaq infringed on the copyright for the book in the 1994 revisions to Compaq’s Safety and Comfort Guide, a manual on ergonomics shipped with every Compaq personal computer. Just prior to Ergonome and Brown’s suit, Compaq filed suit in federal court in Houston, seeking a declaratory judgment that there was no infringement. Compaq Computer Corp. v. Ergonome Inc., No. 97-CV-1026 (S.D. Texas). In July 2001, a jury found that Compaq had copied portions of Brown’s book, but also found Compaq’s copying to be fair use. Harmon then ruled that Compaq did not infringe and that it could recover its costs. Both Compaq counsel Michael O. Sutton of Locke Liddell & Sapp and current Ergonome counsel Parker H. Bagley of New York’s Milbank, Tweed, Hadley & McCloy agree that the case may represent the largest-ever award of attorney fees in a copyright case. Professor Thomas Cotter of the University of Florida College of Law said that as of August 2001, the largest award was approximately $1.3 million in a case involving musician John Fogerty. In her ruling under 17 U.S.C. � 505 and 28 U.S.C. � 1927, Harmon cited numerous discovery abuses by Ergonome and Brown. Calling Harmon’s ruling erroneous and “truly Kafkaesque,” Bagley said that he felt so strongly about the case that he has convinced his Milbank Tweed partners to handle the clients’ appeal to the 5th U.S. Circuit Court of Appeals as the first contingency fee case in the firm’s history.

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