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Law360 Covers $7 Million Fee Award to Johnson & Johnson in Right of Publicity Lawsuit Against Coke and Monster

Posted by Johnson & Johnson, LLP | Jun 26, 2020 | 0 Comments

Juice Heirs Add $7M Fees To $9M Win Against Coke, Monster


June 26, 2020

By Cara Salvatore

Coca-Cola and Monster Energy owe $7 million for the legal fees of an old Hollywood juice maker's grandchildren, on top of the recent $9.6 million jury verdict against the companies for building their Hubert's Lemonade around the juice maker's name and origin story, a San Diego judge has ruled.

San Diego Judge Timothy Taylor added the $7.028 million in legal fees on June 22 to the tab against the two beverage makers. A jury found in February that they had misappropriated Hubert Hansen's right of publicity by pasting his name and the story of his Depression-era Hollywood juice stand on every bottle of the lemonade.

The judge said the handful of plaintiffs' firms, including main firm Johnson and Johnson LLP, deserved to be compensated for most of the hours they'd billed in a “no-holds-barred, take-no-prisoners, leave-no-stone-unturned” case.

He did cut 15% from the number of hours billed by the Johnson firm for duplicative work, however, and also rejected the plaintiffs firms' request for a 1.75 multiplier of their lodestar bill after the two-phase trial; the dollar request was $14.26 million, twice what was ultimately awarded.

“The court takes very seriously plaintiffs' contention that this case became all-consuming. There is substantial evidence that this is true. But this kind of dedication to clients is required of all lawyers, particularly trial lawyers,” the judge said.

“And although it is nuanced, there is a difference between the ‘all-nighters' and other sacrifices described by plaintiffs' counsel and the preclusion of other engagements that the case law indicates may give rise to lodestar enhancements,” the judge said.

Most of the money awarded, $6.66 million, goes to the Johnson firm.

Hubert Hansen started his fresh-juice stand in 1935.

In 1977, one of his grandchildren, Timothy Hansen, started his own juice company, focusing on shelf-stable juices to be sold in stores, rather than fresh-squeezed juice. Timothy's company, Hansen Foods, went through a series of acquisitions, and Monster and eventually Coca-Cola came to own it.

In all those deals, according to Timothy and two other grandchildren who are the three trustees of a trust for Hubert Hansen IP, there was never any transfer — to Timothy's company or to any other company in that branch of succession — of Hubert Hansen's right of publicity under California law, including on the Hubert's Lemonade bottle labels.

“When you turned it over, it was all about Hubert Hansen and his story,” Doug Johnson, a lawyer for the grandchildren's trust, said Friday. “It said ‘founder Hubert Hansen' … he was not the founder of that lemonade.”

Johnson said the Hansen family is also working separately to dispute ownership of trademarks. That matter, which the Johnson firm is not involved in, is currently before the Trademark Trial and Appeal Board, Johnson said.

A representative for Coca-Cola and Monster was not immediately available for comment.

The first phase of the two-phase trial was a bench trial in December, in which Judge Taylor examined which 2015 registration of Hansen's rights of publicity with the California secretary of state was valid: The one filed by his grandchildren, or the one filed a month before by Monster Beverage Co., which that year sold its Hansen's brands to Coke.

Judge Taylor upheld the heirs' registration, writing that Hubert Hansen's publicity rights went to his heirs when he died in 1951, and that those rights were never transferred to Hansen Foods — not when it was founded in 1977, and not when California formally enshrined publicity rights in a 1984 law.

Judge Taylor held that 90% of the ownership of the publicity rights reside with the IP trust established by the heirs, with the remaining 10% belonging to the widow of one of Hubert Hansen's sons.

The phase two jury trial answered the question of whether the beverage giant improperly used the name of the long-deceased juice purveyor, and fixed damages.

The plaintiffs are represented by Douglas Johnson, Neville Johnson, Jordanna Thigpen and Jordan Gonzales of Johnson & Johnson LLP.

The defendants are represented by Marc Miles, Kristy Schlesinger and Janet Hickson of Shook Hardy & Bacon LLP.

The case is Hubert Hansen Intellectual Property Trust v. The Coca Cola Co. et al., case number 37-2016-21046, in the Superior Court of the State of California, County of San Diego.

–Additional reporting by Daniel Siegal. Editing by John Campbell.

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