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When the FBI raided the New Haven, Conn., home of Robert R. Radil in 1994, it came up with a gold mine of information on his computer hard drive — the customer list for his illicit cable descrambler business. And in litigation that has escalated to the second-highest court in the nation, cable supplier AT&T has managed to win some of the highest per-household awards ever imposed for residential use — over $46,000 for a single box in two cases. In a Mar. 20 decision by the 2nd U.S. Circuit Court of Appeals, Judge Jon O. Newman ruled that the applicable law only permits a maximum fine of $10,000 per household, not $20,000 per couple using one box, as U.S. District Court Judge Alvin W. Thompson had allowed. (The balance of the award is attorney fees, which Thompson was directed to reconsider.) If fines were imposed under the broadest reading of 47 U.S.C. � 605, wrote Newman, liability could extend to “household guests, children and baby-sitters.” Instead, he construed the term “violation” to occur each time a descrambler box is purchased and installed — not every time it’s used. The case began with 129 end-user defendants, but almost all settled for amounts between $3,500 and $5,000 said New Haven’s Jonathan J. Einhorn, who appealed on behalf of the final five. Marilyn B. Fagelson, of the New Haven office of Murtha Cullina, representing AT&T, said settlement offers were based on the minimum statutory fine of $1,000 plus legal fees. FAILED STRATEGY Five defendants, represented by Branford’s James Cirillo, went all the way to trial. They invoked their Fifth Amendment right against self-incrimination, requiring the cable company to put on its entire case while the defendants stood mute. Although Radil was not able to identify the defendants in court, there was enough evidence for Thompson to find the defendants liable, and with that came a portion of a $90,083 legal bill. Einhorn, a solo, was outraged. “Maybe it’s just big firm economics,” he said in an interview, “but these fees seem hard to justify for a one-day trial.” In an appeal on behalf of five defendants, Einhorn attacked a $50,000 fee for what he calls a “failed motion for summary judgment,” a $9,000 bill for calculating the bill, and the overall size of the fee. Fagelson said the summary judgment work formed the backbone of AT&T’s case at trial. The complexity of the billing stems partly, she said, from the fact that the firm had to go back and allocate the attorney hours on the basis of defendants in the case at a given moment. “It was a nightmare, partly because we worked so hard to be fair,” she said. At the beginning, the defendants were only allocated a 129th of the fees, before others began to settle. The five defendants were only allocated a fifth of the legal costs for the hours in which they were the last ones litigating. Nevertheless, she noted, under the doctrine of joint and several liability, any defendant could still be held responsible for the whole award. Newman’s panel includes Chief Judge John M. Walker, Jr. and Guido Calabresi. Newman wrote that it wouldn’t be fair to assume the husbands and wives at one address were customers simply because both names were on Radil’s “filled orders” list. “The seller might simply be recording the names of both occupants of the home,” he reasoned.

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