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In re Dex Media, Inc.

United States District Court, D. Delaware

November 28, 2018

IN RE DEX MEDIA, INC., et al, Debtors.
v.
DEX MEDIA, INC., Appellee. YELLOW PAGES PHOTOS, INC., Appellant, Adv. No. 16-51026-KG

          MEMORANDUM OPINION

          Hon. WeMaryellen Noreika, United States District Judge

         Appellant, Yellow Pages Photos, Inc. ("YPPI") appeals from several decisions entered in the chapter 11 cases of Dex Media, Inc. and certain affiliated entities (together, "Dex Media"). The first is YPPPs consolidated appeal of (1) the Bankruptcy Court's January 19, 2017 Memorandum Opinion (Adv. D.I. 40)[1] and Order (Adv. D.I. 41), In re Dex Media, Inc., 564 B.R. 208 (Bankr. D. Del. 2017) ("Judgment on the Pleadings"), granting Dex Media's Motion to Dismiss Yellow Pages Photos, Inc.'s Counterclaims and for Judgment on the Pleadings (Adv. D.I. 31), and (2) the subsequent March 8, 2017 Declaratory Judgment and Order (Adv. D.I. 55) ("Declaratory Judgment"), specifying the declaratory relief granted in the Judgment on the Pleadings.[2] YPPI further appeals the January 30, 2018 Memorandum Opinion (Adv. D.I. 104) and Order (Adv. D.I. 105) ("Fee Award"), awarding Dex Media reasonable attorneys' fees in the amount of $504, 025.50 and costs of $2, 522.45. For the reasons set forth below, the Court affirms the Judgment on the Pleadings, Declaratory Judgment, and Fee Award.

         I. BACKGROUND[3]

         The litigation history between the parties, including Dex Media's wholly owned subsidiary SuperMedia, LLC ("SuperMedia"), is significant in each of these appeals.

         A. License

         SuperMedia publishes yellow pages telephone directories and provides print, mobile, and Internet advertising to small- and medium-sized businesses. (DEX 560 ¶ 10). Years ago, SuperMedia was the yellow pages publishing arm of Verizon, operating under the name Verizon Directories Corp. ("Verizon Directories"). On November 12, 2001, Verizon Directories agreed to license a total of 5, 000 stock photographs from a Florida company then known as Yellow Pages Photos, Inc. ("Old YPPI"), a company wholly owned and operated by Trent Moore ("Moore"). Verizon Directories, "on behalf of itself and all of its affiliates," entered into a Service Contractor Agreement with Old YPPI (the "License" or "License Agreement"). (DEX 577). The License granted Verizon Directories a "perpetual" right to use Old YPPPs 5, 000 images (the "Licensed Images") in any "print, electronic or other medium that may be used by Verizon Directories of directories without limit, ROYALTY FREE." (DEX 589). In exchange, Verizon Directories paid Old YPPI a total of $660, 000, the final installment of which was paid in 2004. (DEX 658 ¶ 16).

         The License contained a transfer restriction, providing that Verizon Directories "may not transfer these images to other parties or individuals unless authorized by YPPI; provided however, that Verizon Directories is authorized... to utilize these photographs and images in the advertising purchased by its customers . . . ." (DEX 590). The License also contained an anti-assignment provision, which stated that Old YPPI "shall not assign its rights nor delegate its duties under this Agreement ... to any third party[] without Verizon Directories' prior written consent in each instance." (DEX 584 § 12).

         In November 2006, Moore changed the name of Old YPPI - the Florida company that had licensed the images to Verizon Directories - to AdMedia Systems, Inc. ("AdMedia"). (DEX 561 ¶ 13). At the same time, Moore created a second Florida company and named it, confusingly, "Yellow Pages Photos, Inc." ("YPPI"). (Id.). Thereafter, AdMedia assigned its copyrights in the Licensed Images to this new YPPI, despite the License's anti-assignment provision. Moore did not inform anyone at Verizon Directories (or its successors) that he had created a second company called "Yellow Pages Photos, Inc." or that AdMedia had assigned its copyrights to this new company. (DEX 504-506). In November 2006, Verizon Directories spun off its directory publication business into a public company, Idearc Media Corp. ("Idearc"), which succeeded to Verizon Directories' rights under the License. (DEX 561, ¶ 14). In July 2007, Idearc and Moore agreed to amend the License to clarify that Idearc's contractors were authorized "users" of those images. (YPPI Appx. 65-66).

         On March 31, 2009, Idearc filed for bankruptcy in the United States Bankruptcy Court for the Northern District of Texas (the "Idearc Bankruptcy"). (YPPI Appx. 5, ¶ 14; 6, ¶ 16); In re Idearc Inc., 423 B.R. 138 (Bankr. N.D. Tex. 2009). Its Chapter 11 plan of reorganization listed all contracts to which Idearc was a party under its schedule of executory contracts. Idearc assumed the License without objection from YPPI. (YPPI Appx. 6, ¶ 16). On December 31, 2009, Idearc emerged from bankruptcy as SuperMedia LLC ("SuperMedia"), which now enjoyed the right to use YPPI's images under the License. (Id., ¶ 17).

         Nearly four years later, on March 18, 2013, SuperMedia's parent company, SuperMedia, Inc., commenced a pre-packaged Chapter 11 bankruptcy proceeding before The Honorable Kevin Gross in the United States Bankruptcy Court for the District of Delaware. (YPPI Appx. 7, ¶ 21). The Chapter 11 plan contemplated a merger between SuperMedia, Inc. and Dex One Corporation, with the merged entity called Dex Media; SuperMedia would emerge from bankruptcy as an indirect, wholly-owned subsidiary of Dex Media. (Id.). The Bankruptcy Court confirmed SuperMedia's plan of reorganization on April 29, 2013, and the plan went effective the next day. (Id.). Since then, Dex Media has been the holding company and indirect parent to SuperMedia. (YPPI Appx. 7, ¶21;12, ¶39).

         B. SuperMedia Litigation

         On May 30, 2013, YPPI filed two claims against SuperMedia's estate, both of which alleged that SuperMedia breached the License and, as a result, infringed YPPPs copyrights. YPPI's first claim was a motion for the allowance and payment of an administrative expense claim that alleged that the License was valid and enforceable and that SuperMedia violated its transfer restriction during the "administrative expense period" - the period between when SuperMedia filed for bankruptcy protection (March 18, 2013) and when it emerged from bankruptcy (April 29, 2013) (the "Administrative Expense Claim"). (DEX 9-14). YPPI's second claim was a Proof of Claim that likewise alleged that the License was valid and enforceable and that SuperMedia breached its transfer restriction but that covered the time period before SuperMedia filed for bankruptcy (the "Prepetition Claim"). (YPPI Appx. 41-68).

         Over the next three years, YPPI litigated its claims against SuperMedia before the Bankruptcy Court, which, as the record reflects, included two phases of fact and expert discovery, dozens of discovery disputes, multiple dispositive motions, two trials, and more than 40 hours of testimony (the "SuperMedia Litigation"). The SuperMedia Litigation was premised on YPPI's allegation that SuperMedia "violated the transfer restriction set forth in the License by transferring the Licensed Images to third parties" and the third-party transferees used the images without authorization. (DEX 601, ¶ 15; 13, ¶ 19). One of the alleged third-party transferees was Dex Media. (DEX 117-18; DEX 60; DEX 39 ("SuperMedia has transferred copies of Yellow Pages' images to a number of unlicensed third-parties ..., and there is evidence of the images being used for at least one unlicensed publisher, SuperMedia's affiliate Dex.")). YPPI maintained that the License was a valid and enforceable contract, as both of its claims hinged on the allegation that SuperMedia breached the transfer restriction in the License. Specifically, YPPI alleged that the License passed through the Idearc Bankruptcy and that "Idearc Media's rights under the Agreement and the License . . . vested in SuperMedia." (DEX 74-75, ¶ 11; see also YPPI Appx. 45, ¶ 11 ("As successor to Idearc, SuperMedia, LLC[] remained bound by the Agreement and the License with YPPI under all of the terms and provisions of the License . . .")). YPPI also sought to recover attorneys' fees under the License.

         1. YPPI's Assumption Motion

         YPPI filed a Motion to Compel Assumption or Rejection of Executory Contract (the "Assumption Motion") before the Bankruptcy Court. (DEX 1-8). In its Assumption Motion, YPPI "maintain[ed] that the License is an executory contract and, consequently, must be either assumed or rejected by the Debtors as part of their bankruptcy case." (DEX 5, ¶ 18). On October 9, 2013, the Bankruptcy Court denied the Assumption Motion, ruling that the "License is not an executory contract." In re SuperMedia, Inc., 2013 WL 5567838 (Bankr. D. Del. Oct. 9, 2013). The Bankruptcy Court noted that "[f]or a contract to be executoiy, there must be unperformed obligations on behalf of both parties." Id. at *4. Here, once "delivery of the images and the payments were completed nearly ten years ago [in 2005], the parties ha[d] received the benefit of their bargain" and no unperformed obligations remained. Id. YPPI moved for reconsideration of the denial of its Assumption Motion. (DEX 28-39). The Bankruptcy Court denied that motion, reiterating its holding that the License is not an executory contract. (DEX 40-42).

         2. YPPI's Administrative Claim

         On April 9, 2014, the Bankruptcy Court commenced a three-day bench trial on YPPI's Administrative Expense Claim. YPPI introduced evidence of allegedly infringing advertising videos that had been created for Dex Media by an outsourcer called bieMedia. (DEX 155 at 15:6-10; DEX 158-59 at 18:22-19:22). YPPI argued that SuperMedia was responsible for these infringing videos, arguing that bieMedia could only have obtained copies of the Licensed Images used in the videos from SuperMedia because, according to YPPI, it "never sold any images to . . . outsourcer[s]" such as bieMedia. (DEX 164 at 23:17-19). In an opinion dated December 29, 2014, the Bankruptcy Court held that SuperMedia breached the License by transferring YPPI's images to its third-party contractors, but it did so before SuperMedia filed for bankruptcy protection. In re SuperMedia, Inc., 2014 WL 7403448, *13 (Bankr. D. Del. Dec. 29, 2014). The Bankruptcy Court found no evidence of any such transfers during the administrative expense period, (id, ), and, therefore, denied YPPI's Administrative Expense Claim. (Id. at * 19-*20). On February 11, 2015, YPPI moved for reconsideration of the Bankruptcy Court's denial of its Administrative Expense Claim. (DEX 218-223). In that motion, YPPI again argued that SuperMedia had "transferred the Licensed Images to Dex Media." (DEX 221, ¶¶ 10, 13). The Bankruptcy Court denied the motion for reconsideration, holding that there was no evidence of a "deliberate physical transfer" of the Licensed Images to Dex Media. Specifically, the Bankruptcy Court held: "The transfer of the Licensed Images resulted from the merger between SuperMedia, Inc. and Dex One. It was the combining of operations between SuperMedia, Inc. (SuperMedia's parent) and Dex One that created the 'transfer,' not a deliberate physical transfer. [Thus] the merger between SuperMedia's parent and DexMedia did not result in a transfer which would constitute a tortious act." (DEX 224-25).

         3. Rule 60(b) Decision

         On January 12, 2015, SuperMedia filed an adversary proceeding formally objecting to YPPI's Prepetition Claim (discussed below). (DEX 242-52). During discovery, it came to light that YPPI had licensed its images to several outsourcers, including bieMedia. (DEX 227-33). This was contrary to Moore's prior testimony that YPPI had never licensed its images to "outsourcers," and, therefore, if any outsourcers were in possession of YPPI's images, they must have come from SuperMedia. (DEX 164 at 23:17-19). On May 29, 2015, SuperMedia filed a Motion for Relief from Judgment under Rule 60 of the Federal Rules of Civil Procedure and sought sanctions against YPPI and its counsel for false representations to the Bankruptcy Court ("Rule 60(b) Motion"). (DEX 227). On September 3, 2015, the Bankruptcy Court granted the Rule 60(b) Motion in part ("Rule 60(b) Opinion"), finding that YPPI intentionally "hid" its license with bieMedia (and a license with another outsource, ASEC) from both SuperMedia and the Bankruptcy Court, and that YPPI and its counsel made "deliberate misrepresentations and non-disclosures" before, during, and after the April 2014 trial. (DEX 226-239). The Bankruptcy Court found "most egregious" the fact that Moore "forcefully testified under oath, testimony which profoundly affected the Court's Opinion." (DEX 230). Based on these findings, the Bankruptcy Court sanctioned YPPI and its counsel, barring recovery for any alleged transfers to bieMedia or other outsourcers whose licenses had been concealed. (DEX 238). The Bankruptcy Court further awarded $111, 679 to SuperMedia for its fees and costs in bringing the Rule 60(b) Motion. (DEX 240-41).

         4. AdMedia Decision

         The Bankruptcy Court scheduled a trial on YPPI's Prepetition Claim for November 2015. In July 2015, SuperMedia deposed Moore and learned that the "Yellow Pages Photos, Inc." that had filed claims in the Bankruptcy Court was not the same entity that signed the License. (DEX 271-72). The counterparty to the License was Old YPPI, which had since changed its name to AdMedia. (Id.). SuperMedia was granted leave to amend its complaint in the adversary proceeding to assert that YPPI did not have standing to enforce the License. Just before trial began, YPPI filed a motion to join AdMedia as an "alternatively pled creditor." (DEX 342-50). In a separate post-trial opinion ("AdMedia Decision"), the Bankruptcy Court denied that motion, holding that YPPI acted with undue delay and in "bad faith," had "deceived" the Court and SuperMedia by "omitting from its filings facts essential for adjudication of this case," and "actively concealed" the fact that the YPPI before the Bankruptcy Court was a different entity than the YPPI that had entered into the License. (DEX 504; DEX 520; DEX 524).

         5. Prepetition Claim

         On October 23, 2015, shortly before the trial on YPPI's Prepetition Claim began, YPPI filed an amended Proof of Claim, raising a new theoiy of liability - the "failure to assume" theory. (DEX 306-336) ("Amended Proof of Claim"). As in the original Proof of Claim, the Amended Proof of Claim continued to allege that the License was valid and enforceable and that SuperMedia breached the transfer restriction in the License. (DEX 316, ¶¶ 23-25). In the alternative, however, YPPI now alleged that the License was invalid and unenforceable because SuperMedia's predecessor, Idearc, failed properly to assume the License during its 2009 bankruptcy. (DEX 314, ¶¶ 17-18). Specifically, YPPI alleged that Idearc breached the License before the Idearc Bankruptcy, "failed to cure" these breaches during its 2009 bankruptcy, and thus could not assume the License when it exited bankruptcy. (Id.). YPPI maintained, if Idearc did not properly assume the License, then "any use or transfer of the Licensed Images by SuperMedia at any point in time has been a violation of Yellow Pages' copyrights in the Licensed Images." (DEX 316, ¶ 26). Prior to the November 2015 trial, however, YPPI abandoned its "failure to assume" theoiy and, instead, pressed forward with its original claim that the License was a valid agreement that SuperMedia breached.

         The November 2015 trial of YPPI's Prepetition Claim focused on the damages attributable to SuperMedia's pre-petition breach of the License's transfer restriction. In an attempt to establish the value of the YPPI images that SuperMedia transferred to its contractors, YPPI introduced evidence of "hundreds" of print advertisements containing the Licensed Images, which had been published in "Dex Media" directories. (Adv. No. 15-50044-KG, D.I. 153, 11/15/15 Hr'g Tr. at 164:17-190:1). The evidence that YPPI introduced included a yellow pages directory published by Dex Media in 2015, which contained print advertisements using YPPI images. (DEX 487 at 72:11-15). While YPPI cited the use of its images in print advertisements as evidence of the images' value, YPPI conceded that the use of its images in print advertisement - including in the 2015 directory-was not an infringing use. YPPI's counsel stated: "[W]e don't dispute, of course, that they license[d] the images and they were allowed to use them in printouts." (DEX 381 at 62:21-23; see also DEX 408 at 186:22 ("I'm not saying the uses are infringing.")). YPPI's principal, Moore, admitted the same thing while testifying under oath: "I do not think that the print ad is a violation of the license agreement." (DEX 415 at 269:7-17). Moore's testimony on this point was clear: Q. "And SuperMedia was allowed to use your images in print ads, correct?" A. "Yes, they were." (Id. at 269:12-14).

         On April 4, 2016, the Bankruptcy Court handed down its "final decision on the merits" of the SuperMedia Litigation. In re SuperMedia LLC, 2016 WL 1367070 (Bankr D. Del. April 4, 2016) ("April 2016 Opinion"). The Bankruptcy Court held that YPPI could not recover statutory damages or attorneys' fees under the Copyright Act because it had failed to timely register its copyrights. Id. at *4. The Bankruptcy Court further held that YPPI could not recover attorneys' fees under the License because AdMedia, not YPPI, was the real party to the License. Id. YPPI was left with a claim for actual damages based upon SuperMedia's unauthorized transfers to its contractors. The Bankruptcy Court awarded YPPI $303, 210 in actual damages. Id. at *9. SuperMedia has paid that judgment in full.

         C. Dex Media Litigation

         1. Florida Action

         On April 29, 2016, less than a month after the Bankruptcy Court's April 2016 Opinion, YPPI sued SuperMedia's parent, Dex Media, in the United States District Court for the Middle District of Florida, alleging that Dex Media infringed YPPI's copyrights on the same 5, 000 images at issue in the SuperMedia Litigation. On July 8, 2016, Dex Media responded to that complaint by filing the instant Adversary Proceeding in its pending Chapter 11 case before Judge Gross (the "Dex Media Litigation"). (YPPI Appx. 1-86). In its adversary complaint, Dex Media objected to YPPI's claims against its estate and sought a declaratory judgment that Dex Media "has not infringed any of the Licensed Images . . . ." (YPPI Appx. 13-14, ¶ 43). Given the extensive overlap with the SuperMedia Litigation, the Bankruptcy Court agreed to exercise jurisdiction over the Adversary Complaint.

         2. Motion for Judgment on the Pleadings

         On September 30, 2016, YPPI filed its Answer and Counterclaims in the Dex Media Litigation, asserting copyright infringement against Dex Media ("Counterclaims"). (YPPI Appx. 87-117). YPPI's Counterclaims were premised on the same "failure to assume" theory that YPPI previously raised, and abandoned, in the SuperMedia Litigation. Specifically, in the Dex Media Litigation, YPPI alleged that the License was "never effectively assumed in the Idearc Bankruptcy Case" due to Idearc's failure to cure existing breaches and, as a result, "no rights under the [License] remained or otherwise inured to the benefit of SuperMedia following the Idearc Bankruptcy confirmation hearing." (YPPI Appx. 107-09, ¶¶ 36-45).

         YPPI's Counterclaims against Dex Media also relied on two propositions that contradicted YPPPs representations during the SuperMedia Litigation. First, whereas in the SuperMedia Litigation, YPPI alleged that the License was a valid agreement that had fully "vested in SuperMedia," (DEX 74-75, ¶ 11); in the Dex Media Litigation, YPPI asserted that SuperMedia had "no rights" under the License as of December 30, 2009. (YPPI Appx. 107-09, ¶¶ 36-45). Second, whereas in the SuperMedia Litigation, YPPI represented that the use of YPPI's images in print advertisements published in Dex Media directories was not an infringing use; in the Dex Media Litigation, YPPI alleged that those same print advertisements infringed YPPI's copyrights. (YPPI Appx. 110, ¶ 51). YPPI's Counterclaims in the Dex Media Litigation also alleged that the License was an executory contract (YPPI Appx. 105-06, ¶¶ 30-32), even though the Bankruptcy Court twice held it was no longer executory as of 2005 in ruling on the Assumption Motion.

         On November 3, 2016, Dex Media filed a Motion to Dismiss YPPI's Counterclaims and for Judgment on the Pleadings (the "Motion for Judgment"). (YPPI Appx. 406-510). Dex Media advanced four grounds in support of its Motion for Judgment: (1) YPPI's claims were barred by claim preclusion or res judicata; (2) YPPI's claims were barred by judicial estoppel; (3) YPPI's claims were barred by collateral estoppel; and (4) YPPI failed to state a claim upon which relief could be granted. (YPPI Appx. 412-15).

         On January 19, 2017, the Bankruptcy Court entered the Judgment on the Pleadings on three of the four grounds: claim preclusion (res judicata), judicial estoppel, and collateral estoppel. See Dex Media, 564 B.R. at 214-16. First, the Bankruptcy Court held that res judicata applied because "the claims in both actions are similar if not identical" such that "[t]rying the Dex Media case would be a retrial of the SuperMedia Litigation." Id. at 214. Second, the Bankruptcy Court held that judicial estoppel barred YPPI's claims in the Dex Media Litigation because they were an "improper" attempt to "flip-flop" on its positions on the validity of the License and the non- infringing nature of print ads. Id. at 215. Lastly, the Bankruptcy Court held that collateral estoppel barred YPPPs claims in the Dex Media Litigation because they depended on two elements essential to its Counterclaims: the executory nature of the License, and a transfer of the Licensed Images to Dex Media. The Bankruptcy Court stated, "[i]t is abundantly clear that the Court adjudicated both of these issues, and that the determination was necessary to the court's decision." Id. at 216. Based on the foregoing, the Bankruptcy Court entered its Memorandum Opinion and Order granting Judgment on the Pleadings in favor of Dex Media. On January 30, 2017, YPPI filed its notice of appeal of the Judgment on the Pleadings. (Adv. D.I. 42).

         3. Declaratory Judgment

         Thereafter, Dex Media filed a "Certification of Counsel" and proposed form of Declaratory Judgment on the basis that the Bankruptcy Court failed to enter a judgment "in a separate document" as required by Rule 58(a) of the Federal Rules of Civil Procedure. (Adv. D.I. 49). YPPI opposed entry of judgment, arguing that the deadline for filing a motion for an award of attorneys' fees expired on February 2, 2017, that Dex Media had missed the deadline, and that the request for entry of the separate Declaratory Judgment was a ploy to "reset the clock" so that Dex Media could timely file a motion for attorneys' fees. See Fed R. Civ. P. 54(d)(2)(B)(i) (a motion for attorneys' fees "must ... be filed no later than 14 days after the entry of judgment."). On March 8, 2017, the Bankruptcy Court entered the Declaratory Judgment. (Adv. D.I. 55). On March 13, 2017, YPPI filed its notice of appeal of the Declaratory Judgment. (Adv. D.I. 57).

         4. The Fee Award

         On March 23, 2017, Dex Media submitted its Amended Motion for Attorneys' Fees and Costs under Section 505 of the Copyright Act. (Adv. D.I. 64). Prior to responding, YPPI was permitted to take the deposition of not only the lead partner representing Dex Media, but also one of the associates on the Dex Media team. (Adv. D.I. 76 at ¶ 15; Adv. D.I. 81). Following those depositions, YPPI submitted its opposition to Dex Media's fee application. (Adv. D.I. 91). Dex Media submitted its reply brief on June 26, 2017. (Adv. D.I. 94). The Bankruptcy Court heard oral argument on Dex Media's fee application on January 11, 2018. (Adv. D.I. 115).

         On January 30, 2018, the Bankruptcy Court issued its Memorandum Opinion granting the Fee Award. (Adv. D.I. 104 & 105). The Bankruptcy Court agreed with YPPI that "a court may not award attorneys' fees as a matter of course but only after making a 'particularized case-by-case assessment.'" (Adv. D.I. 104 at 4 (quoting Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct. 1979, 1985 (2016))). Given the facts of this case, however, the Bankruptcy Court was "convinced beyond near certainty that YPPI's lawsuit against Dex Media was a situation of 'objective unreasonableness.'" (Id., (quoting Kirtsaeng, 136 S.Ct. at 1985)). In reaching this conclusion, the Bankruptcy Court found:

In its lawsuit YPPI is making claims contrary to its previous representations to the Court in the SuperMedia action. For instance, in the prior SuperMedia action, YPPI claimed that the license was valid, enforceable and that print advertisements were not infringement. In its new action, YPPI instead claims that the License was not valid and therefore SuperMedia and its affiliates and customers had no right to use the License. There are other inconsistencies.

(Id.). The Bankruptcy Court further held that fee shifting was warranted based upon considerations of deterrence, finding that it is "very important for SuperMedia to end YPPI's harassment." (Id.). As the Bankruptcy Court found: "YPPI filed the Dex Media lawsuit [in Florida] mere weeks after the Court's ruling in the SuperMedia case. YPPI waited months to serve Dex Media with the Complaint in the Florida Action. The Complaint in the Florida Action also asserts positions contrary to YPPI's claims in previous litigation. Deterrence is therefore an important consideration." (Id. at 4-5). To determine a reasonable fee award, the Bankruptcy Court "reviewed the Dex Media attorneys' time records - line by line." (Id. at 9). "For each and every time record, the [Bankruptcy] Court used its independent judgment to approximate the time necessary for the dispute." (Id.). Based on this analysis, the Bankruptcy Court awarded Dex Media fees of $504, 025.50 and expenses of $2, 522.45 - a reduction of roughly 33% of the fees and expenses Dex Media incurred, and paid, in defending against YPPI's claims. (Id. at 11).

         In rendering its Fee Award, the Bankruptcy Court rejected YPPI's contention that Dex Media could only recover fees based upon the prevailing rates in the forum of the litigation (Delaware), and not the forum in which its attorneys practice (New York). (Id. at 5-6). In rejecting this argument, the Bankruptcy Court found that "the knowledge and expertise of [Dex Media's] Non-Local Counsel was critical to Dex Media's success in the litigation." (Id., at 7). The Bankruptcy Court also rejected YPPI's contention that a fee award would result in the "financial ruination" of YPPI's business, finding that "YPPI has not presented a clear record of its financial circumstances." (Id. at 10). On February 1, 2018, YPPI appealed the Fee Award. (Adv. D.I. 107).

         These appeals are fully briefed. The Court did not hear oral argument because the facts and legal arguments are adequately presented in the briefs and the record, and the decisional ...


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