Opinion
1:20-cv-00769 (JGK) (SDA)
06-01-2021
Cengage Learning, Inc., et al., Plaintiffs, v. Trung Kien Nguyen, et al., Defendants.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE:
Plaintiffs Cengage Learning, Inc. (“Cengage”); Bedford, Freeman & Worth Publishing Group, LLC d/b/a Macmillan Learning (“Macmillan”); Elsevier Inc. (“Elsevier”); McGraw Hill LLC (“McGraw Hill”); and Pearson Education, Inc. (“Pearson”) (collectively, “Plaintiffs”) brought this action against multiple defendants alleging federal copyright infringement. (See Compl., ECF No. 1.) Certain of those defendants have defaulted and Plaintiffs seek a judgment for damages and injunctive and additional post-judgment relief against the Defaulting Defendants.
The defaulting defendants are Trung Kien Nguyen, Duy Anh Nguyen, Duong Thi Bay, Xuan Chinh Nguyen, Tuan Anh Nguyen, Vinh Ngoc Nguyen, Le Trang, Van Quynh Pham, Thi Lien Phuong Nguyen, Van Tuan Dang, Hien Vo Van, Quang Nguyen, Jessica Goldberg, Maxim Gubceac, Tracey Lum, Rodney Mouzone and Zainee Jallal (the “Group 1 Defendants”); Luu Van Doan and Bui Hai Linh (the “Group 2 Defendants”); Mohd Haniff Haslam, Rafan Waseef and Sameer Yaman (the “Group 3 Defendants”); Stefan Demeter, Shahbaz Haider, Erika Demeterova and Rostislav Zhuravskiy (the “Group 4 Defendants”); Susan Ragon, Waleska Camacho, Anjum Akhter and Haseeb Anjum (the “Group 5 Defendants”); Muhd Izhan Khairul; Vu Xuan Truong; Binh Nguyen; Mohd Ali Kamil; Adam Harold; Abdul Rahim Mohsin; Refat Hamouda; Mohamed Sabek; Do Thanh Duy; Cris Austin; and Wasri Wamin (collectively, the “Defaulting Defendants”).
See Plaintiffs' Proposed Findings of Fact and Conclusions of Law (“PFF”), ECF No. 110; Pls.' Mem., ECF No. 111; 4/7/21 Fleischman Decl., ECF No. 113 (redacted version), ECF No. 114 (unredacted version); Seymour Decl., ECF No. 115; Phan Decl., ECF No. 116 (redacted version), ECF No. 117 (unredacted version); 4/8/21 Cert. of Service, ECF No. 118.
For the following reasons, I respectfully recommend that Plaintiffs be awarded a judgment in the amount of $5,850,000, along with injunctive and additional post-judgment relief.
As set forth below, in light of the default, the Court accepts as true the properly pleaded allegations in the Amended Complain, except those related to damages.
Plaintiffs are five of the leading educational publishers in the United States. (Am. Compl. ¶ 67.) Plaintiffs' publications include physical textbooks, as well as digital and online textbooks (e.g., eBooks). (See id.) These textbooks are widely available in the United States marketplace to consumers for a fee. (Id.) They are sold through direct sales channels and via legitimate distributors and stores, including through online sales. (Id.) Plaintiffs publish their textbooks under many imprints, or brands, that are well known and highly respected. (Am. Compl. ¶ 68.) Plaintiffs are the owners of various copyrights issued by the United States Copyright Office, which cover many of Plaintiffs' textbooks. (Id. ¶ 71; see also Ex. C to Am. Compl. (list of Plaintiffs' authentic works (the “Authentic Works”)) Plaintiffs invest significant time and money into publishing their textbooks. (Am. Compl. ¶ 69.)
EBooks are “digital book[s] that you can read on a computer screen or an electronic device.” Random House, Inc. v. Rosetta Books LLC, 150 F.Supp.2d 613, 614-15 (S.D.N.Y. 2001), aff'd, 283 F.3d 490 (2d Cir. 2002).
Without any authorization or license to do so, the Defaulting Defendants willfully reproduced Plaintiffs' eBooks and sold and distributed them to customers throughout the United States (and elsewhere), including in New York. (Am. Compl. ¶ 2.) The Defaulting Defendants relied on Google advertising services to offer consumers searching for Plaintiffs' textbooks inexpensive and illegitimate copies of those textbooks. (Id. ¶ 3.) Defendants' paid advertisements for their Infringing eBooks are displayed prominently at the top of Google search results and lure consumers away from legitimate sources of textbooks. (Id.) Hiding behind the anonymity of the internet, the Defaulting Defendants sold the Infringing eBooks through their websites (the “Infringing Sites”), without revealing, and in many cases actively concealing, their true identities. (Id. ¶ 4.) The Defaulting Defendants reproduced Plaintiffs' textbooks without authorization and then stored the Infringing eBooks, which were full (or in some cases nearly full, as they were missing some content), unauthorized digital copies, on computers or servers that the Defaulting Defendants owned or controlled. (Id. ¶ 76.) Plaintiffs made test purchases of infringing copies of Plaintiffs' Authentic Works from the Infringing Sites. (See Am. Compl. ¶ 82.) Such purchases confirmed that, as the Defaulting Defendants advertised, they provided consumers with digital copies (albeit unauthorized copies) of Plaintiffs' Authentic Works. (Id.) Many, if not all, of the files the Defaulting Defendants distributed included the copyright page contained in the Authentic Works, and some included a copyright notice on each and every page of the PDF file. (Id.)
By the nature of their illegal businesses, the Defaulting Defendants were aware of the enormous scope of their infringing activity. (Am. Compl. ¶ 92.) Defendants knowingly and intentionally designed, built and operated businesses devoted to selling pirated copies of Plaintiffs' copyrighted works. (Id.) Defendants did so with the knowledge that they had not been granted any license to copy, distribute or sell electronic (or other) copies of Plaintiffs' textbooks. (Id.)
The Defaulting Defendants committed the following acts:
(1) The Group 1 Defendants sold pirated copies of Plaintiffs' copyrighted works through numerous Infringing Sites, including 13 Sites identified in Plaintiffs' original Complaint, i.e., bossiva.com, ebookclouds.com, ebookspaces.com, ecoebook.com, evomalls.com, jolostore.com, noamalls.com, oscarmalls.com, priceairestore.com, sheellas.com, stingmall.com, teespops.com and valeriehoptop.com. (Am. Compl. ¶ 101.) Plaintiffs also identified in discovery at least 85 associated websites linked to the Group 1 Defendants. (Id.)
The Group 1 Defendants used names, aliases, email addresses and financial accounts interchangeably to conduct and/or profit from their illegal businesses. (Am. Compl. ¶ 102.) They made concerted efforts to conceal their identities and contact information. (Id. ¶ 103.) For example, in dealing with intermediaries and/or otherwise operating their infringing businesses, the Group 1 Defendants collectively provided over 750 aliases, 900 email addresses and 350 physical addresses across the United States. (Id.)
After receiving notice of the injunctions entered in this case, the Group 1 Defendants continued to infringe Plaintiffs' rights in violation of such injunctions. (Am. Compl. ¶ 105.) For example, the Group 1 Defendants continued to operate Infringing Sites, including noamalls.com, oscarmalls.com, priceairstore.com, sheellas.com, stingmall.com, teespops.com and valeriehoptop.com, and continued to operate a No. of associated websites. (Id. ¶¶ 105-06.)
(2) The Group 2 Defendants sold Infringing eBooks through their Infringing Sites anlifestyles.com, blogshirt68.club and hlshirt.com. (Am. Compl. ¶ 107.) Plaintiffs also identified in discovery at least 15 associated websites linked to the Group 2 Defendants. (Id.)
The Group 2 Defendants used names, aliases, email addresses and/or financial accounts interchangeably to conduct and/or profit from their illegal businesses. (Am. Compl. ¶ 108.) They made concerted efforts to conceal their identities and contact information. (Id. ¶ 109.) For example, in dealing with intermediaries and/or in operating their infringing businesses, the Group 2 Defendants collectively provided at least sixteen aliases, twenty-four email addresses and seven physical addresses in Illinois and abroad. (Id.)
(3) The Group 3 Defendants sold Infringing eBooks through their Infringing Sites bookdeskshop.com, ebooksmartly.com and source4student.com. (Am. Compl. ¶ 110.) Plaintiffs also identified in discovery at least seven associated websites linked to the Group 3 Defendants. (Id.)
The Group 3 Defendants used names, aliases, email addresses and/or financial accounts interchangeably to conduct and/or profit from their illegal businesses. (Am. Compl. ¶ 111.) They made concerted efforts to conceal their identities and contact information. (Id. ¶ 112.) For example, in dealing with intermediaries and/or operating their infringing businesses, the Group 3 Defendants collectively provided at least two aliases, four email addresses and eighteen physical addresses across Malaysia. (Id.) After receiving notice of the injunctions entered in this case, the Group 3 Defendants continued to operate source4student.com in violation of such injunctions. (Id. ¶ 113.)
(4) The Group 4 Defendants sold Infringing eBooks through their Infringing Site duplanaca.com. (Am. Compl. ¶ 114.) Plaintiffs also identified in discovery at least eighteen associated websites linked to the Group 4 Defendants. (Id.)
The Group 4 Defendants used names, aliases, email addresses and/or financial accounts interchangeably to conduct and/or profit from their illegal businesses. (Am. Compl. ¶ 115.) They made concerted efforts to conceal their identities and contact information. (Id. ¶ 116.) For example, in dealing with intermediaries and/or operating their infringing businesses, they collectively provided at least four aliases, five email addresses and ten physical addresses across the United States and in the United Kingdom, and provided false addresses. (Id.)
(5) The Group 5 Defendants sold Infringing eBooks through their Infringing Site duranbooks.com. (Am. Compl. ¶ 117.) Plaintiffs also identified in discovery at least nine associated websites linked to the Group 5 Defendants. (Id.)
The Group 5 Defendants used names, aliases, email addresses and/or financial accounts interchangeably to conduct and/or profit from their illegal businesses. (Am. Compl. ¶ 118.) They made concerted efforts to conceal their identities and contact information. (Id. ¶ 119.) For example, in dealing with intermediaries and/or operating their infringing businesses, they provided at least five aliases, six email addresses and eleven addresses across the United States and abroad, and used false addresses. (Id.) After receiving notice of the injunctions entered in this case, the Group 5 Defendants continued to operate duranbooks.com in violation of such injunctions. (Id. ¶ 120.)
(6) Defendant Muhd Izhan Khairul sold Infringing eBooks through his Infringing Site ebestreader.com. (Am. Compl. ¶ 121.) He made efforts to conceal his identity and contact information. (Id. ¶ 122.) In dealing with intermediaries and/or operating his infringing business, he provided at least two different physical addresses in Malaysia. (Id.) After receiving notice of the injunctions entered in this case, Defendant Khairul continued to operate ebestreader.com in violation of the Court's orders. (Id. ¶ 123.)
(7) Defendant Vu Xuan Truong sold infringing eBooks through his Infringing Sites ebook.engastore.com, magic.engastore.com and topbooks.ziploma.com. (Am. Compl. ¶ 124.)
Plaintiffs also identified in discovery at least one associated website linked to Defendant Truong. (Id.) Defendant Troung made efforts to conceal his identity and contact information. (Am. Compl. ¶ 125.) In dealing with intermediaries and/or operating his infringing business, Defendant Truong provided at least nine aliases, twelve email addresses and eighteen addresses in Texas and abroad. (Id.) After receiving notice of the injunctions entered in this case, he continued to operate topbooks.ziploma.com in violation of such injunctions. (Id. ¶ 126.)
(8) Defendant Binh Nguyen sold infringing eBooks through his Infringing Site ebooklisttop.com. (Am. Compl. ¶ 127.) He made efforts to conceal his identity and contact information. (Id. ¶ 128.) In dealing with intermediaries and/or operating his infringing business, he provided at least three aliases, eight email addresses and four physical addresses in California and abroad. (Id.)
(9) Defendant Mohd Ali Kamil sold Infringing eBooks through his Infringing Sites eduplify.com and hunterbuuk.com. (Am. Compl. ¶ 140.) Plaintiffs also identified in discovery at least one associated website linked to Defendant Kamil. (Id.) He made efforts to conceal his identity and contact information. (Id. ¶ 141.) In dealing with intermediaries, he provided at least seven aliases, five email addresses and nine physical addresses in New York and Malaysia. (Id.)
(10) Defendant Adam Harold sold infringing eBooks through his Infringing Site eperfectedu.com. (Am. Compl. ¶ 145.) He made efforts to conceal his identity and contact information. (Id. ¶ 146.) In dealing with intermediaries, he provided at least one alias and three physical addresses in Malaysia. (Id.)
(11) Defendant Abdul Rahim Mohsin sold infringing eBooks through his Infringing Site estoreselect.com. (Am. Compl. ¶ 147.) Plaintiffs also identified in discovery at least one associated website linked to Defendant Mohsin. (Id.) He made efforts to conceal his identity and contact information. (Id. ¶ 148.) In dealing with intermediaries and/or operating his infringing business, he provided at least five aliases, five email addresses and eleven addresses in Canada. (Id.)
(12) Defendant Refat Hamouda sold infringing eBooks through the Infringing Site gogooddiscount.com. (Am. Compl. ¶ 149.) He made efforts to conceal his identity and contact information. (Id. ¶ 151.) He provided multiple aliases, email addresses and physical addresses to intermediaries. (PFF ¶ 55.)
In the Amended Complaint, Defendant Hamouda had been grouped with a defendant named Mostafizur Rahman to comprise what Plaintiffs referred to as the “Group 6 Defendants.” (See Am. Compl. at 45.) However, a notice of voluntary dismissal was filed as to Rahman (ECF No. 63) and he no longer is a defendant in this case.
(13) Defendant Mohamed Sabek sold Infringing eBooks through his Infringing Site intellegantmarkets.com. (Am. Compl. ¶ 152.) He made efforts to conceal his identity and contact information. (Id. ¶ 153.) In dealing with intermediaries and/or operating his infringing business, he provided at least five aliases, five email addresses and seven physical addresses in Egypt. (Id.)
(14) Defendant Do Thanh Duy sold infringing eBooks through his Infringing Sites iziebook.com, jenwind.co and ritzyish.us. (Am. Compl. ¶ 142.) Plaintiffs also identified in discovery at least two associated websites linked to Defendant Duy. (Id.) Defendant Duy made efforts to conceal his identity and contact information. (Am. Compl. ¶ 143.) In dealing with intermediaries and/or operating his infringing business, he provided at least four aliases, nineteen email addresses and twenty physical addresses across the United States and abroad, and used false addresses. (Id.) After receiving notice of the injunctions entered in this case, Defendant Duy continued to operate one of his Infringing Sites in violation of such injunctions. (Id. ¶ 144.)
(15) Defendant Cris Austin sold Infringing eBooks through his Infringing Site studyhallpress.com. (Am. Compl. ¶ 154.) Plaintiffs also identified in discovery at least two associated websites linked to Defendant Austin. (Id.) Defendant Austin made efforts to conceal his identity and contact information. (Am. Compl. ¶ 155.) In dealing with intermediaries and/or operating his infringing business, he provided at least three email addresses and two physical addresses across the United States, and used false addresses. (Id.) After receiving notice of the injunctions entered in this case, Defendant Austin continued to operate studyhallpress.com in violation of such injunctions. (Id. ¶ 156.)
(16) Defendant Wasri Wamin sold Infringing eBooks through his Infringing Site testbankklick.com. (Am. Compl. ¶ 157.) He made efforts to conceal his identity and contact information. (Id. ¶ 158.) In dealing with intermediaries and/or operating his infringing business, he provided at least an alias, two email addresses and two addresses abroad. (Id.)
PROCEDURAL HISTORY
On January 29, 2020, Plaintiffs initiated this action against then-unknown defendants, alleging copyright infringement based on the defendants' online sales of pirated copies of Plaintiffs' copyrighted textbooks (“Infringing eBooks”) to consumers in the United States. (See Compl. ¶ 2.) On February 18, 2020, they obtained an ex parte temporary restraining order (“TRO”), an expedited discovery order and an order to show cause regarding a preliminary injunction. (2/18/20 OTSC, ECF No. 11.) Pursuant to the Court's ex parte order, Plaintiffs served their Complaint and ex parte application on the defendants through the email addresses associated with the defendants' online storefronts. (See 2/20/20 Aff. of Service, ECF No. 9.) The Court thereafter issued a preliminary injunction in favor of Plaintiffs. (Prelim. Inj., ECF No. 14.) On Plaintiffs' motion, on March 19, 2020, the Court entered an Amended Preliminary Injunction, which extended the injunctive relief to an expanded list of the defendants' names, aliases, email addresses and infringing sites. (Am. Prelim. Inj., ECF No. 25.)
After discovery, Plaintiffs were able to identify the named defendants associated with the online storefronts. (See 11/17/20 Fleischman Decl., ECF No. 71, ¶ 11.) On July 1, 2020, Plaintiffs filed an Amended Complaint. (Am. Compl., ECF No. 36.) Pursuant to the Court's July 8, 2020 Order allowing alternate service by email on the named defendants located in foreign countries and with unverified addresses in the United States (7/8/20 Order, ECF No. 45), Plaintiffs served the Summons and Amended Complaint on Defendants by email. (See 7/9/20 Cert. of Service, ECF No. 46.)
None of the Defaulting Defendants responded to the Complaint or Amended Complaint. (See 11/17/20 Fleischman Decl. ¶ 12.) Accordingly, the Clerk of Court entered defaults against each of the Defaulting Defendants on September 2, 2020. (See 9/2/20 Clerk's Certificate of Default, ECF No. 59.) On November 17, 2020, Plaintiffs moved by Order to Show Cause for a default judgment (ECF Nos. 69-77) and, on December 30, 2020, Plaintiffs filed supplemental declarations in further support thereof (ECF Nos. 87-97). On March 16, 2021, the Court entered an Order stating that Plaintiffs were entitled to a default judgment and referring the case to me for an inquest with respect to the nature of the judgment to be entered. (See 3/16/21 Order, ECF No. 107.)
On March 17, 2021, I ordered that Plaintiffs file Proposed Findings of Fact and Conclusions of Law concerning all damages and any other monetary relief permitted under the entry of default. (See 3/17/21 Order, ECF No. 109.) Plaintiffs filed these documents on April 7, 2021. (ECF Nos. 110-11.) The Defaulting Defendants had until April 21, 2021 to file any response to Plaintiffs' submissions. As of the date of this Report and Recommendation, none of the Defaulting Defendants have responded or appeared to defend in this action.
LEGAL STANDARDS
Where default has been entered against a defendant, courts are to accept as true all of the well-pleaded facts alleged in the complaint, except those concerning the amount of damages. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)); see also City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”) (quoting Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all . . . factual allegations as true and draw all reasonable inferences in [plaintiff's] favor.”) (citation omitted).
“While a party's default is deemed to constitute a concession of all well-pleaded allegations of liability, it is not considered an admission of damages.” Gogo Apparel, Inc. v. Daruk Imports, Inc., No. 19-CV-05701 (LGS) (SDA), 2020 WL 4274793, at *6 (S.D.N.Y. June 11, 2020), report and recommendation adopted, No. 19-CV-05701 (LGS), 2020 WL 4271694 (S.D.N.Y. July 23, 2020) (quoting Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d. Cir. 1992)); accord Trs. of Local 813 Ins. Tr. Fund v. Rogan Bros. Sanitation Inc., 12-CV-06249 (ALC) (HBP), 2018 WL 1587058, at *5 (S.D.N.Y. Mar. 28, 2018). “A plaintiff bears the burden of establishing its entitlement to recovery and thus must substantiate its claim with evidence to prove the extent of its damages.” Best Brands Consumer Prod., Inc. v. Versace 19.69 Abbigliamento Sportivo S.R.L., No. 17-CV-04593 (VSB) (SDA), 2020 WL 8678085, at *4 (S.D.N.Y. Oct. 1, 2020) (citation omitted).
The Second Circuit has held that a damages inquest may be held on the basis of documentary evidence alone “as long as [the court has] ensured that there was a basis for the damages specified in [the] default judgment.” Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); accord Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991). In the case of a default where the defendant has never appeared, “a court may base its determination of damages solely on the plaintiff's submissions.” Trs. Of Local 813 Ins. Tr. Fund, 2018 WL 1587058, at *5 (citing Fustok, 873 F.2d at 40).
DISCUSSION
Plaintiffs seek a default judgment for statutory damages for the Defaulting Defendants' copyright infringement, as well as injunctive and additional post-judgment relief. (See Pls.' Mem. at 24-25; PFF ¶ 72.) Because the default order entered in this case establishes the Defaulting Defendants' liability, the only remaining issue is whether Plaintiffs have supplied adequate support for the damages they seek. See Kuruwa v. Meyers, 823 F.Supp.2d 253, 256 (S.D.N.Y. 2011), aff'd, 512 Fed.Appx. 45 (2d Cir. 2013); see also Cengage Learning, Inc. v. Yousuf, No. 14-CV-03174 (DAB) (SDA), 2018 WL 6990757, at *3 (S.D.N.Y. Dec. 20, 2018), report and recommendation adopted, No. 14-CV-03174 (DAB), 2019 WL 162661 (S.D.N.Y. Jan. 10, 2019) (“Where, as in this case, a plaintiff's well-pleaded facts are sufficient to state a claim on which relief can be granted, the only remaining issue in an inquest is whether plaintiff has provided adequate support for its requested relief.”) (citations omitted).
I. Findings Of Fact Relating To Quantum Of Damages Sought
The March 17, 2021 Order notified the parties that the Court would conduct the inquest into damages based upon the written submissions of the parties unless a party sought an evidentiary hearing. (See 3/17/21 Order ¶ 5.) No. party has requested an evidentiary hearing. Moreover, because Plaintiffs' submissions provide a basis for an award of damages, no hearing is required.
Plaintiffs seek damages in this case based on the textbook titles that Plaintiffs actually purchased from the Defaulting Defendants' Infringing Sites. (See PFF ¶ 63.) The Group 1 Defendants sold to Plaintiffs 27 titles of Authentic Works of all Plaintiffs. (11/17/20 Fleischman Decl. ¶ 46 & Ex. 1.) The Group 2 Defendants sold to Plaintiffs four titles of Authentic Works of Cengage, Elsevier and Macmillan. (Id.) The Group 3 Defendants sold to Plaintiffs three titles of Authentic Works of Macmillan and Pearson. (Id.) The Group 4 Defendants sold to Plaintiffs one title of an Authentic Work of Macmillan. (Id.) The Group 5 Defendants sold to Plaintiffs two titles of Authentic Works of Pearson. (Id.) Defendant Muhd Izhan Khairul sold to Plaintiffs one title of an Authentic Work of Macmillan. (Id.) Defendant Vu Xuan Truong sold to Plaintiffs three titles of Authentic Works of Cengage, McGraw Hill and Macmillan. (Id.) Defendant Binh Nguyen sold to Plaintiffs one title of an Authentic Work of Macmillan. (Id.) Defendant Mohd Ali Kamil sold to Plaintiffs two titles of Authentic Works of Elsevier. (Id.) Defendant Adam Harold sold to Plaintiffs one title of an Authentic Work of Elsevier. (Id.) Defendant Abdul Rahim Mohsin sold to Plaintiffs one title of an Authentic Work of Cengage. (Id.) Defendant Refat Hamouda sold to Plaintiffs one title of an Authentic Work of Elsevier. (Id.) Defendant Mohamed Sabek sold to Plaintiffs one title of an Authentic Work of Elsevier. (Id.) Defendant Do Thanh Duy sold to Plaintiffs four titles of Authentic Works of Cengage, Elsevier and McGraw Hill. (Id.) Defendants Cris Austin and Wasri Wamin each sold to Plaintiffs one title of an authentic work of McGraw Hill. (Id.)
II. Legal Standards For Damages Under The Copyright Act
Under the Copyright Act, an infringer of a copyright is liable for either (a) the copyright owner's actual damages and any additional profits of the infringer, or (b) statutory damages. 17 U.S.C. § 504(a); Brown v. Party Poopers, Inc., No. 00-CV-04799 (JSM) (DFE), 2001 WL 1380536, at *4 (S.D.N.Y. July 9, 2001). Section 504(c) of the Copyright Act permits a court to award statutory damages “with respect to any one work . . . in a sum of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). If the court finds willful infringement, “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.” Id. § 504(c)(2). Within these statutory limits, the court has broad discretion in determining the appropriate statutory damages award. See Fitzgerald Publ'g Co., Inc. v. Baylor Publ'g Co., Inc., 807 F.2d 1110, 1116 (2d Cir. 1986); accord Noble v. Crazetees.com, No. 13-CV-05086 (PAE) (HBP), 2015 WL 5697780, at *6 (S.D.N.Y. Sept. 28, 2015) (citations omitted).
No proof of actual damages or, in fact, any damages, is necessary for the award of statutory damages. See All-Star Mktg. Grp., LLC v. Media Brands Co., 775 F.Supp.2d 613, 626 (S.D.N.Y. 2011) (quoting Nat'l Football League v. PrimeTime 24 Joint Venture, 131 F.Supp.2d 458, 472 (S.D.N.Y. 2001)). Where a defendant has defaulted, a complaint's allegations of willfulness may be taken as true. See Rovio Ent., Ltd. v. Allstar Vending, Inc., 97 F.Supp.3d 536, 546 (S.D.N.Y. 2015) (citing All-Star Mktg., 775 F.Supp.2d at 621-22).
In calculating the appropriate statutory damages award, the Second Circuit has held that a court should consider the following factors:
(1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.Bryant v. Media Right Prods., Inc., 603 F.3d 135, 143-44 (2d Cir. 2010) (citation omitted); accord Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 127 (2d Cir. 2014); Hollander Glass Tex., Inc. v. Rosen-Paramount Glass Co., 291 F.Supp.3d 554, 559 (S.D.N.Y. 2018). “[W]illfullness in the context of statutory damages for copyright infringement means that the infringer either had actual knowledge that it was infringing the plaintiffs' copyrights or else acted in reckless disregard of the high probability that it was infringing plaintiffs' copyrights.” Nat'l Football League, 131 F.Supp.2d at 475 (internal quotation marks and citation omitted; alteration in original) (citing cases).
III. Analysis Of Factors Regarding Statutory Damages Awards
With respect to the first factor, by virtue of their default, the Defaulting Defendants are deemed to be willful infringers. See Rovio Entm't, 97 F.Supp.3d at 546. Moreover, on the record before the Court, there is no question that the Defaulting Defendants' conduct was willful. The Defaulting Defendants intentionally designed and built businesses devoted to selling pirated copies of Plaintiffs' copyrighted works, which they knowingly obtained with no license or other form of permission to copy or distribute. (See PFF ¶ 69.)
In addressing factors two and three, the Court cannot determine from the record the full extent of the expenses saved or the profits earned by the Defaulting Defendants, nor the revenue lost by the Plaintiffs. For example, none of the Defaulting Defendants produced records of their sales of Plaintiffs' textbooks, including titles sold, No. of copies, price per copy and dates of sale. (See 11/17/20 Fleischman Decl. ¶ 10.) Nevertheless, “it is clear that the [Defaulting] Defendants profited substantially from their infringing conduct, while the Plaintiffs suffered losses” in part “because [the Defaulting Defendants] bore none of the costs of creating any of the copyrighted works, yet profited from their unauthorized sale.” Cengage Learning v. Shi, No. 13-CV-07772 (VSB) (FM), 2015 WL 5167775, at *5 (S.D.N.Y. Sept. 3, 2015); see also Id. (“despite investing heavily in the creation of the copyrighted works, the Plaintiffs have seen no profits from the Defendants' sales”).
The fourth factor regarding the deterrent effect on the infringer and third parties also weighs in Plaintiffs' favor. “[C]ourts have repeatedly emphasized that defendants must not be able to sneer in the face of copyright owners and copyright laws.” Tu v. TAD Sys. Tech. Inc., No. 08-CV-03822 (SLT) (RM), 2009 WL 2905780, at *6 (E.D.N.Y. Sept. 10, 2009) (quoting N.Y. Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., No. 89-CV-6082, 1991 WL 113283, at *4 (S.D.N.Y. June 14, 1991) (internal quotation marks omitted)). In the case of “coordinated . . . and extensive copyright infringement, ” a substantial statutory damage award can “act as a specific deterrent to the [defendants] and a general deterrent to other like-minded infringers.” Cengage Learning v. Bhargava, No. 14-CV-03174 (DAB) (RLE), 2017 WL 9802833, at *5 (S.D.N.Y. Aug. 22, 2017), report and recommendation adopted, 2018 WL 1989574 (S.D.N.Y. Apr. 25, 2018).
The last two factors weigh in Plaintiffs' favor as well, given that the Defaulting Defendants' “default and subsequence [sic] silence shows a lack of cooperation in determining damages.” Hollander Glass, 291 F.Supp.3d at 559. In addition to making any damages calculation more difficult, the Defaulting Defendants' lack of cooperation in this action “has ensured that the full scale of their infringement and the resulting damage to Plaintiffs will remain unknown.” (See Pls.' Mem. at 15.)
Another factor often considered by courts is the value of the copyrights. See Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110 (2d Cir. 1986). That factor also weighs in Plaintiffs' favor. Plaintiffs are among the leading higher education publishers in the world and have invested decades of effort in building a reputation of quality in the publishing industry, which consumers associate with Plaintiffs and their textbooks. (See PFF ¶ 68.)
IV. Application Of Factors Regarding Statutory Damages Awards
In light of the Defaulting Defendants' infringements on Plaintiffs' legitimate copyrights, Plaintiffs seek statutory damages for copyright infringement under the Copyright Act, 17 U.S.C. § 504. (See Pls.' Mem. at 7-12.) Plaintiffs seek maximum statutory damages for willful infringement-i.e., $150,000 per copyright infringed. (See Id. at 10.)
“In cases where the plaintiffs seek the maximum damages, awarded damages span a large range, from $10,000 to $150,000 per infringement.” Cengage Learning, Inc., 2017 WL 9802833, at *5 (citing cases). A damages award of $150,000 per infringement “is simply a possibility, not an assurance.” Id. “A court will find an award of the maximum statutory damages reasonable under the Copyright Act when there is a clear relationship to the profit or in the most egregious of circumstances.” Id. (citations omitted). The Court below addresses the damages to be awarded by defendant or group of defendants based upon the Court's review of the record and relevant case law, and the Court's view regarding the need for deterrence and the other Bryant factors.
The Court finds that the maximum statutory award of $150,000 per infringement is appropriate as to the Group 1 Defendants, given the egregious circumstances that exist as to them. With respect to the Group 1 Defendants, there is evidence of flagrant and extensive copyright infringement, together with their usage of multiple identities, efforts to conceal their identities, disregard of prior court orders in this action and substantial revenues earned from their unlawful activities. (See Am. Compl. ¶¶ 101-06; PFF ¶¶ 33.) Of particular note, Plaintiffs submitted evidence that the Group 1 Defendants generated in excess of $9.5 million in revenues from the operation of their Infringing Sites. (See PFF ¶ 33.)
Plaintiffs have submitted evidence that, in addition to the 27 titles of Authentic Works for which Plaintiffs are seeking damages in this case, the Group 1 Defendants sold a substantial No. of Plaintiffs' other titles. (See PFF ¶¶ 31, 34.)
The Group 1 Defendants have shown their willingness to disregard injunctions before, as they also operated twelve additional infringing websites that are the subject of another copyright action Plaintiffs brought in this District prior to this action. (See PFF ¶ 39.)
The circumstances regarding the Group 2 Defendants are not as extreme as those regarding the Group 1 Defendants, but nevertheless are serious. The Group 2 Defendants engaged in flagrant and widespread copyright infringement. In addition, there is evidence of their usage of multiple identities and efforts to conceal their identities, but there is no evidence of disregard of prior court orders or substantial revenues earned from their unlawful activities. (See Am. Compl. ¶¶ 107-09; PFF ¶ 33.) Considering the record as a whole and the relevant factors, the Court finds that a statutory award of $50,000 per infringement is appropriate as to the Group 2 Defendants. See Cengage Learning, Inc., 2017 WL 9802833, at *5 (“$50,000 per infringement is an appropriate award given the [defendants'] coordinated, flagrant, and extensive copyright infringement in light of the lack of profit information and should act as a specific deterrent to the [defendants] and a general deterrent to other like-minded infringers”).
Plaintiffs have submitted evidence that, in addition to the four titles of Authentic Works for which Plaintiffs are seeking damages in this case, the Group 2 Defendants sold a substantial No. of Plaintiffs' other titles. (See PFF ¶¶ 31, 34.)
The payment processor records submitted by Plaintiffs regarding the Group 2 Defendants only show revenues of slightly more than $3,000 from the Group 2 Defendants' Infringing Sites, as compared to the in excess of $9.5 million in revenues from the Group 1 Defendants' Infringing Sites. (See PFF ¶¶ 33.)
The circumstances regarding the Group 3 Defendants are more serious than those regarding the Group 2 Defendants, but not as extreme as those regarding the Group 1 Defendants. The Group 3 Defendants engaged in flagrant and extensive copyright infringement.Although it is not alleged that the Group 2 Defendants violated the injunctions in this case, the Amended Complaint alleges that the Group 3 Defendants violated the injunctions in this case after having been provided notice of them. (See Am. Compl. ¶ 113.) However, in contrast to the evidence that the Group 1 Defendants generated in excess of $9.5 million in revenues from operation of the Infringing Sites, there is no evidence regarding the revenues earned by the Group 3 Defendants from operation of their Infringing Sites. (See PFF ¶ 33.) Thus, the Court finds that an award of $75,000 per infringement is appropriate as to the Group 3 Defendants, effectively increasing the damages award by one-third per copyright infringed over the award against the Group 2 Defendants.
Plaintiffs have submitted evidence that, in addition to the three titles of Authentic Works for which Plaintiffs are seeking damages in this case, the Group 3 Defendants sold a substantial No. of Plaintiffs' other titles. (See PFF ¶¶ 31, 34.)
The record evidence regarding the Group 4 Defendants and Group 5 Defendants shows that they too engaged in flagrant and extensive copyright infringement. Both the Group 4 Defendants and the Group 5 Defendants used multiple identities and made efforts to conceal their identities. (See Am. Compl. ¶¶ 115-16, 118-19.) In addition, the Group 5 Defendants violated the injunctions in this case after having been provided notice of them. (Id. ¶ 120.) Of particular note, Plaintiffs submitted evidence that the Group 4 Defendants generated in excess of $675,000 in revenues from the operation of their Infringing Sites and the Group 5 Defendants generated in excess of $550,000 in revenues from the operation of their Infringing Sites. (See PFF ¶ 33.) In these circumstances, the Court finds that a damages award of $100,000 per copyright infringed is appropriate against the Group 4 Defendants and the Group 5 Defendants. See Elsevier Inc. v. Chew, No. 17-CV-06225 (JGK) (GWG), 2019 WL 74606, at *11 (S.D.N.Y. Jan. 2, 2019), report and recommendation adopted, 2019 WL 10947099 (S.D.N.Y. Jan. 23, 2019) (awarding $100,000 per copyright infringed against certain defendants where there was “evidence of usage of multiple identities, working with other infringing defendants, efforts to hide their identities, disregard of prior court actions, and/or evidence of substantial profits earned from other websites”).
Plaintiffs have submitted evidence that, in addition to the titles of Authentic Works for which Plaintiffs are seeking damages in this case, the Group 4 Defendants and Group 5 Defendants sold some of Plaintiffs' other titles, although less in quantity than those sold by the Group 1, Group 2 and Group 3 Defendants. (See PFF ¶¶ 31, 34.)
The Group 4 Defendants and the Group 5 Defendants have shown their willingness to disregard injunctions before, as they also operated, respectively, two and one additional infringing websites that are the subject of another copyright action Plaintiffs brought in this District prior to this action. (See PFF ¶¶ 44, 47.)
This leaves the individually named defendants (i.e., Muhd Izhan Khairul, Vu Xuan Truong, Binh Nguyen, Mohd Ali Kamil, Adam Harold, Abdul Rahim Mohsin, Refat Hamouda, Mohamed Sabek, Do Thanh Duy, Cris Austin and Wasri Wamin). Each of them engaged in flagrant and extensive copyright infringement. Moreover, each of them made efforts to conceal their identities. However, of these Defaulting Defendants, only Muhd Izhan Khairul, Vu Xuan Truong, Do Thanh Duy and Cris Austin continued to operate their Infringing Sites after receiving notice of the injunctions entered in this case. In these circumstances, the Court finds that an award of $50,000 per infringement is appropriate against Binh Nguyen, Mohd Ali Kamil, Adam Harold, Abdul Rahim Mohsin, Refat Hamouda, Mohamed Sabek and Wasri Wamin, thereby aligning these Defaulting Defendants with the Group 2 Defendants, and an award of $75,000 per infringement is appropriate against Muhd Izhan Khairul, Vu Xuan Truong, Do Thanh Duy and Cris Austin, thereby aligning these Defaulting Defendants with the Group 3 Defendants.
In addition, Defendant Duy generated in excess of $325,000 in revenues from the operation of his Infringing Site. (See PFF ¶ 33.)
V. Injunctive Relief
Plaintiffs also “request that the Court permanently enjoin [the Defaulting] Defendants, pursuant to Federal Rule of Civil Procedure 65(d), from directly or indirectly infringing Plaintiffs' copyrights, in the same manner that the Court has already enjoined such infringement in issuing the TRO and Preliminary Injunctions.” (Pls.' Mem. at 16.) “[A] court may issue an injunction when the moving party establishes that there is a statutory basis for relief and that it meets the prerequisites for the issuance of an injunction.” TigerCandy Arts, Inc. v. Blairson Corp., No. 09-CV-06215 (GBD) (FM), 2012 WL 760168, at *7 (S.D.N.Y. Feb. 23, 2012), report and recommendation adopted, 2012 WL 1948816 (S.D.N.Y. May 30, 2012) (internal quotation marks and citations omitted).
To obtain a permanent injunction, a plaintiff must show:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citations omitted); accord Salinger v. Colting, 607 F.3d 68, 77-78 (2d Cir. 2010). The Copyright Act authorizes a court to “grant . . . final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a).
In the present case, the eBay factors weigh in favor of granting an injunction to Plaintiffs. “First, courts routinely find the harm suffered by plaintiffs in copyright cases to be ‘irreparable' on the theory that lost sales or diminished reputation can be difficult if not impossible to measure.” Broad. Music, Inc. v. Prana Hosp., Inc., 158 F.Supp.3d 184, 195 (S.D.N.Y. 2016) (citations omitted). Second, the record establishes that there is a significant threat of future infringement. “Courts in this Circuit have consistently found monetary damages inadequate where the defendant poses a significant threat of future infringement.” Id. at 195 (citations omitted). Third, as to the balance of hardships, “[i]t is axiomatic that an infringer . . . cannot complain about the loss of ability to offer its infringing product.” WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d Cir. 2012) (alteration in original) (quoting WPIX, Inc. v. ivi, Inc., 765 F.Supp.2d 594, 621 (S.D.N.Y. 2011)). Fourth, “the public has an interest in not being deceived-in being assured that the mark it associates with a product is not attached to goods of unknown origin and quality.” N.Y.C. Triathlon, LLC v. NYC Triathlon Club, Inc., 704 F.Supp.2d 305, 344 (S.D.N.Y. 2010).
Thus, I recommend that a permanent injunction be issued in Plaintiffs' favor.
VI. Post-Judgment Relief
Plaintiffs also request that the judgment to be entered by the Court contain “(1) a post-judgment asset restraint, (2) a provision dissolving the automatic stay, and (3) a provision requiring the transfer of Defendants' frozen assets to satisfy the judgment.” (Pls.' Mem. at 19.) Finally, Plaintiffs request that the judgment “order [the Defaulting] Defendants, as well as the applicable registrars and registries overseeing the domain names, to transfer to Plaintiffs the domain names associated with the Infringing Sites.” (Id. at 23.) Each of these requests is considered below.
A. Post- Judgment Asset Restraint
Federal Rule of Civil Procedure 69(a)(1) provides that “[t]he procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located . . . .” Fed.R.Civ.P. 69(a)(1). In New York, where this Court is located, Section 5222 of the New York Civil Practice Law and Rules (“CPLR”) permits a judgment creditor to serve a restraining notice on a judgement debtor, which prohibits the judgment debtor from “mak[ing] or suffer[ing] any sale, assignment, transfer or interference with any property in which [it] has an interest, ” except in limited circumstances. N.Y. C.P.L.R. § 5222(b). Thus, once a defendant is found liable and a money judgment is rendered against a defendant, a district court sitting in New York has the power to restrain a defendant's assets, and I recommend that the Defaulting Defendants' assets be restrained. See Off-White LLC v. Warm House ^_^Store, No. 17-CV-08872 (GBD) (GWG), 2019 WL 418501, at *7 (S.D.N.Y. Jan. 17, 2019) (granting motion for post-judgment asset restraint); WowWee Grp. Ltd. v. Haoqin, No. 17-CV-09893, 2019 WL 1316106, at *6 (S.D.N.Y. Mar. 22, 2019) (same).
The asset restraint also could be based upon Rules 64 and/or 65 of the Federal Rules of Civil Procedure. Some courts in the Second Circuit “have used both Rule 64 of the Federal Rules of Civil Procedure . . . and Rule 65 to issue post-judgment injunctions to secure assets.” Shamrock Power Sales, LLC v. Scherer, No. 12-CV-08959 (KMK) (JCM), 2016 WL 11484445, at *4 (S.D.N.Y. June 15, 2016), report and recommendation adopted as modified, 2016 WL 6102370 (S.D.N.Y. Oct. 18, 2016).
B. The Automatic Stay
Rule 62(a) of the Federal Rules of Civil Procedure stays the execution of and proceedings enforcing judgments for 30 days. See Fed.R.Civ.P. 62(a). However, Rule 62 expressly recognizes the Court's authority to dissolve the automatic stay. See Fed.R.Civ.P. 62 (providing for stay “unless the court orders otherwise”); see also Advisory Committee's Notes (2018) (“Amended Rule 62(a) expressly recognizes the court's authority to dissolve the automatic stay ..... One reason for dissolving the automatic stay may be a risk that the judgment debtor's assets will be dissipated.”). Here, there is a risk of dissipation of assets, such that dissolving of the automatic stay is appropriate. Thus, I recommend that the Court “dissolve[] the automatic stay imposed by Rule 62 and allow[] for immediate enforcement of the judgment.” See Allstar Mktg. Grp., LLC v. 123 Beads Store, No. 19-CV-03184 (AJN), 2020 WL 5836423, at *7 (S.D.N.Y. Sept. 30, 2020).
In the alternative, as requested by Plaintiffs (see Pls.' Mem. at 23 n.10), I recommend that the Court temporarily continue the asset freeze in the Amended Preliminary Injunction (Am Prelim. Inj. at 5-6) for 30 days so that the pre-judgment restraint does not expire until the post-judgment restraint becomes enforceable.
C. Transfer Of Frozen Assets
Rule 64 of the Federal Rules of Civil Procedure provides that “[a]t the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment.” Fed.R.Civ.P. 64. In New York, Section 5225 of the CPLR authorizes this Court to compel a nonparty to surrender a judgment debtor's property. N.Y. C.P.L.R. § 5225.
The Court has authority to order a transfer of infringing defendants' frozen assets to plaintiffs pursuant to Rule 64, as well as “this Court's inherent equitable power to issue remedies ancillary to its authority to provide final relief.” Gucci Am., Inc. v. Curveal Fashion, No. 09-CV-08458 (RJS), 2010 WL 308303, at *5-6 (S.D.N.Y. Jan. 20, 2010); see also Spin Master Ltd. v. Alan Yuan's Store, 325 F. Supp . 3d 413, 428 (S.D.N.Y. 2018) (ordering the transfer of infringing defendants' frozen assets to the plaintiff). Such an order is appropriate in this case so that the assets can be applied towards satisfaction of the judgment to be entered.
This authority stems from the All Writs Act. See 28 U.S.C. § 1651(a) (“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”).
D. Transfer Of Domain Names
As set forth above, Plaintiffs request to have the judgment entered in this case order the Defaulting Defendants, as well as the applicable registrars and registries overseeing the domain names, to transfer to Plaintiffs the domain names associated with the Infringing Sites. (See Pls.' Mem. at 23.) “Courts within [the Second Circuit] have granted orders transferring domain names to prevent further infringement of copyright holder's rights.” Asia TV USA Ltd. v. Kamran Int'l Trade Ltd., No. 17-CV-05057 (FB) (CLP), 2018 WL 6313215, at *11 (E.D.N.Y. Sept. 25, 2018), report and recommendation adopted, 2018 WL 6313180 (E.D.N.Y. Dec. 3, 2018) (citations omitted). “Other courts in this circuit, however, have declined to issue third party injunctions transferring a defendant's domain names to plaintiffs.” Id. (citations omitted). “Additionally, courts have specifically noted the jurisdictional concerns with issuing third party injunctions impacting parties not before the court, ” i.e., the non-party domain name registries. See id.
This Report and Recommendation does not address the jurisdictional issues associated with Plaintiffs' request, since there is a preliminary hurdle, in my view, that should be overcome- i.e., whether Plaintiffs have made an adequate showing that they are entitled to an affirmative injunction ordering the transfer of domain names owned by each of the Defaulting Defendants on the record before the Court. I find that Plaintiffs have not yet made an adequate showing. I recommend that the Court issue an injunction transferring the domain names only upon a further showing by Plaintiffs that any of the Defaulting Defendants continues to sell the infringing products on the Infringing Sites in violation of the default judgment that the Court enters in this case. See, e.g., Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 120 (S.D.N.Y. 2008) (declining to issue injunction transferring domain names “unless further proof is submitted that Defendant continues to sell the infringing products on [subject] websites in violation of . . . Default Judgment”). As and when Plaintiffs seek to make such a showing, Plaintiffs may brief, and the Court may address, any jurisdictional issues regarding the applicable registrars and registries overseeing the domain names.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiffs be awarded damages against the Defaulting Defendants as follows:
Defendant(s)
Plaintiff(s)
Number of Titles
Damages Per Infringement
Damages
Group 1 Defendants
All Plaintiffs
27
$150,000
$4,050,000
Group 2 Defendants
Cengage, Elsevier, Macmillan
4
$50,000
$200,000
Group 3 Defendants
Macmillan, Pearson
3
$75,000
$225,000
Group 4 Defendants
Macmillan
1
$100,000
$100,000
Group 5 Defendants
Pearson
2
$100,000
$200,000
Refat Hamouda
Elsevier
1
$50,000
$50,000
Muhd Izhan Khairul
Macmillan
1
$75,000
$75,000
Vu Xuan Truong
Cengage, McGraw Hill, Macmillan
3
$75,000
$225,000
Binh Nguyen
Macmillan
1
$50,000
$50,000
Mohd Ali Kamil
Elsevier
2
$50,000
$100,000
Do Thanh Duy
Cengage, Elsevier, McGraw Hill
4
$75,000
$300,000
Adam Harold
Elsevier
1
$50,000
$50,000
Mohamed Sabek
Elsevier
1
$50,000
$50,000
Abdul Rahim Mohsin
Cengage
1
$50,000
$50,000
Cris Austin
McGraw Hill
1
$75,000
$75,000
Wasri Wamin
McGraw Hill
1
$50,000
$50,000
TOTAL
$5,850,000
I also recommend that a permanent injunction be entered in Plaintiff's favor; that a post-judgment asset restraint be entered in Plaintiffs' favor; that the automatic stay imposed by Rule 62 be dissolved to allow for immediate enforcement of the judgment; and that the judgment provide for the transfer of the Defaulting Defendants' frozen assets to Plaintiffs.
No later than June 8, 2021, Plaintiffs shall serve this Report and Recommendation upon the Defaulting Defendants by mail (or by email as previously authorized) and shall file proof of service thereof.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Koeltl.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).