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A $75 million licensing dispute won by World Wrestling Entertainment over Marvel Enterprises is morphing into a no-holds-barred match over attorney fees. Lawyers for the Stamford, Conn.-based WWE have asked Fulton Superior Court Judge Gail S. Tusan to order Marvel to pay $1.25 million for fees and costs incurred by WWE and the other defendants during the 3 1/2 years of litigation over the licensing of professional wrestler action figures. In a response, Marvel’s attorneys accused the wrestling outfit of pursuing “a scorched earth defense in this action, replete with unsuccessful pleading and discovery motions.” It would be unfair, Marvel’s lawyers added, for their client to pay for 41 defense lawyers and paralegals who “overpopulated the courtroom and deposition sessions … sometimes having double or triple the presence” of Marvel’s legal team. The lead WWE attorney, John L. Taylor Jr. of Chorey, Taylor & Feil in Atlanta, said his side has asked for permission to conduct discovery to learn more about the fees Marvel paid its lawyers. Taylor explained that he would like to compare what his client paid to win the case to what the losing side charged. In any event, Taylor said, his team’s fees were reasonable for the work performed. “The client paid them,” he added. “That’s always a pretty good sign.” Among the other attorneys who worked on the WWE defense were Otto F. Feil III of Chorey, Taylor & Feil and Curtis B. Krasik and Jerry S. McDevitt of Kirkpatrick & Lockhart Nicholson Graham in Pittsburgh. James A. Lamberth, Wesley B. Tailor and Lynette E. Smith of Troutman Sanders in Atlanta worked for the defense on a related suit, representing Universal Wrestling Corp., an Atlanta-based company formerly known as World Championship Wrestling, which was purchased by WWE in March 2001. The Troutman lawyers have asked for attorney fees as part of the same motion. According to documents filed with the motion for attorney fees, Taylor’s rate reached $395 an hour at one point. The rate of his partner, Feil, reached $355. In Pittsburgh, McDevitt’s hourly rate was $425 at one point, according to court filings, and Krasik’s appeared to be between $220 and $235 for much of the litigation. Troutman’s Lamberth charged $410 an hour at one point, while Tailor’s rate appeared to be between $210 and $240 an hour. Smith garnered $300 an hour, according to the filings. The lion’s share of the fees and costs requested in the motion would go to Kirkpatrick & Lockhart, which seeks to recover $589,289. When asked about the plaintiffs’ legal bill, the lead attorney for Marvel, Eric C. Lang of the Lang Legal Group in Atlanta, said it wasn’t relevant to whether the WWE defense fees were reasonable. “They’re trying to recover for losing motions during the case and for having multiple lawyers at hearings where we only had one,” said Lang, who had been at Paul, Hastings, Janofsky & Walker when the litigation began in 2001. Among those working with Lang on the plaintiffs’ side were Jennifer Mack Greenfield of the Lang Legal Group, David Fleischer of Paul, Hastings’ New York office and Gerald B. Kline of Sims, Moss, Kline & Davis in Atlanta. ACTION FIGURES BEHIND SUIT The litigation centered on a 1997 merchandising license agreement between World Championship Wrestling, then owned by Atlanta’s Turner Broadcasting, and Toy Biz Inc., which became Marvel Enterprises after merging with Marvel Entertainment Group in 1998. The agreement gave New York-based Marvel a five-year license to manufacture and sell action figures based on 116 professional wrestlers and other characters appearing in World Championship Wrestling TV programs, including premium channel and pay-per-view events. It also allowed Toy Biz to use WCW logos and slogans on the products. The agreement included a three-year renewal option exercisable at Marvel’s discretion. Among the professional wrestlers on the list were “Hollywood” Hulk Hogan, “Rowdy” Roddy Piper, “Macho Man” Randy Savage, Bill Goldberg, Scott Steiner and Dusty Rhodes. The agreement gave World Championship Wrestling the right to change the list of licensed items and also provided that the elements were licensed only to the extent of WCW’s ownership or control. The deal worked well at first. According to the original complaint, Marvel’s revenue under the agreement reached $104 million in 1999. But in 2001, WWE purchased the bulk of WCW from Turner. The transaction included most of WCW’s intellectual property rights, including the agreement with Marvel, according to an appeals court decision in the Marvel case. After the sale, the portion of WCW not acquired by WWE took on the name Universal Wrestling Corp. Shortly after the acquisition, Marvel alleged that WWE stopped supplying Toy Biz with information needed to manufacture, sell, distribute and promote new action figures. For its part, WWE said it planned to launch a new WCW TV program featuring some of the old WCW wrestlers, but the plans dissolved. “WWE took the position that, without any ongoing WCW television programming or promotions, the subject matter of its merchandise licensing agreement with Marvel no longer existed,” the appellate decision said. In 2001, Marvel sued WWE and WCW in Fulton County Superior Court, accusing the wrestling entities of breach of contract and breach of covenant of good faith and fair dealing. It asked for $75 million in damages. A little more than two months later, Marvel also filed suit against Universal. In the meantime, attorneys for WWE and WCW filed a counterclaim, seeking a declaration that no operative agreement existed between themselves and Marvel. In July 2003, Tusan granted WWE’s motion for summary judgment and dismissed the first case. Among her findings, Tusan held that the merchandising agreement unambiguously gave WWE the “unilateral, unfettered right to change the scope of the license.” The judge also granted Universal’s motion for summary judgment with respect to Marvel’s third-party beneficiary claim, but she denied the remainder of Universal’s arguments. This year the Georgia Court of Appeals affirmed Tusan’s ruling on WWE’s motion for summary judgment. The appellate judges also ruled in favor of Universal’s summary judgment motions. Appeals Judge Anne E. Barnes wrote that “the contract simply does not grant licensing rights to named wrestlers who appear on programs other than WCW programs and the trial court did not err on this ground in granting summary judgment to WWE.” Marvel Enterprises v. World Wrestling Federation Entertainment, 271 Ga. App. 607. TIME TO APPEAL Marvel’s time to file further appeals has expired, according to the WWE’s motion for attorney fees. McDevitt, the Pittsburgh lawyer who works as outside counsel for WWE, called the appellate decision “a complete vindication that the lawsuit was meritless and frivolous.” He also wondered aloud whether the plaintiffs ever would reply to the recent discovery request and reveal how much Marvel paid to sue WWE. “I can guarantee you we pay less to win than they pay to lose,” he said. The two cases involving the attorney fees are Marvel Enterprises v. World Wrestling Federation Entertainment, No. 2001CV44275 (Fult. Super. filed Oct. 19, 2001), and Marvel Enterprises v. Universal Wrestling Corp., No. 2001CV47211 (Fult. Super. filed Dec. 28, 2001).

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