James Orenstein
How Judge Orenstein decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Statutory floors govern even when he thinks the real-world value is lower. In a copyright default he computed an approximate actual licensing value (~$250/article) but awarded the 17 U.S.C. 504(c) statutory minimum of $750/work because the statute requires it -- and declined to exceed the minimum absent a stated reason. To move him off a floor (up or down) you must give him a concrete record reason.
“in light of evidence suggesting that the minimum statutory award will overcompensate the plaintiffs for any cognizable loss, and in the absence of any other stated reason to exceed the minimum award, I respectfully recommend a statutory damages award of $750 per infringement”
Procedural preferences
On a default judgment against fewer than all defendants in a joint-and-several case, he defers the damages inquest until the claims against the non-defaulting defendants are resolved -- to avoid inconsistent judgments. Do not expect a damages number at the default-judgment stage in a multi-defendant case before him.
“As a general rule, where ... an action against several defendants charges them with joint and several liability and where fewer than all defendants are in default, the preferred practice is to defer the damages inquest until after disposition of the claims against the non-defaulting defendants.”
Fee applications require contemporaneous time records that identify the attorney who did the work. Reconstructed records get a haircut; where the records do not identify which attorney performed a task, he bases the award on the LOWEST reasonable hourly rate among the lawyers who could have done it, and cuts inflated/block-billed hours.
“the reconstructed billing records do not sufficiently identify the attorney who performed the work. ... Under such circumstances, the court should base its fee award on the lowest hourly rate from among the attorneys who could have performed the work.”
Cautions
He scrutinizes -- and slashes -- attorneys' fees in boilerplate, high-volume default cases. In a Richard Liebowitz copyright default he cut the fee to three compensable hours at $100/hr, calling out the 'cookie-cutter' and deficient motion papers and the implausible time billed for tasks Liebowitz files repeatedly. A high-volume plaintiff's-side filer should expect his fee request to be independently audited even on an unopposed default.
“Given the frequency with which Liebowitz files nearly identical complaints and the ability to find copyright registration information on the United States Copyright Office's website in just a few minutes, Liebowitz's attempt to bill so much time for those tasks is excessive.”
Comply with HIS scheduling-order deadlines for damages evidence. He declined to consider exhibits filed after the ordered deadline and discredited speculative inquest testimony on non-payment of wages; the district judge deferred to those calls. Get your damages proof in on time and in admissible form.
“Judge Orenstein was well within his authority to decline to consider plaintiffs' untimely filed exhibits. ... Judge Orenstein, who presided over the hearing, discredited this testimony as speculative and some of it as inadmissible hearsay.”
Motion outcomes
Counted from classified signed orders only. Percentages are shown only where the sample is large enough to be meaningful; smaller samples are reported as raw counts.
| Default judgment N = 4 |
Granted: 2Granted in part: 2 | counts only |
| Summary judgment N = 3 |
Granted: 1Denied: 2 | counts only |
| Motion to approve settlement N = 1 |
Granted in part: 1 | counts only |
A "1 of 1" is one ruling, not a tendency. Treat small samples as illustrative, not predictive.
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“I grant the motion conditioned on the parties' agreement to accept a reduction in the portion of the settlement amount to be set aside as to attorneys' fees and costs. Specifically, I will approve the proposed settlement if the parties agree to reduce the amount of attorneys' fees from $19,819.00 to $17,106.25.”
“the Albanis' motion for summary judgment is denied, as is Maffucci's; Bekins' motion for summary judgment is granted.”
“the Albanis' motion for summary judgment is denied, as is Maffucci's; Bekins' motion for summary judgment is granted.”
“Bekins' motion for summary judgment is granted.”
“I respectfully recommend that the court enter a default judgment against defendant George Alderdice on Counts 5 and 7 of the Complaint, and dismiss Count 16 against defendant Alderdice sua sponte. I further recommend that the court defer a determination of damages until after the plaintiff's claims against the answering defendants have been resolved.”
“I respectfully recommend that the court grant a default judgment against Spring on the plaintiffs' copyright claim, enter judgment against both defendants jointly and severally in the total amount of $155,250 (reflecting the minimum statutory award of $750 for each of the 207 infringing articles as to which the plaintiffs have sufficiently demonstrated their ownership), dismiss all of the plaintiffs' remaining claims, and close this case.”
“the court substantially adopts Judge Orenstein's R&R with minor modifications to the calculation of unpaid wages damages, and associated interest, but adopts the R&R in all other respects including as to attorneys' fees. ... plaintiffs' motion for entry of default judgment is granted with respect to all defendants.”
“I respectfully recommend that the court grant the motion for default judgment and award the plaintiff a total of $1,490 (consisting of $750 in statutory damages, $300 in attorney's fees, and $440 in costs).”
Caseload & timing
From public federal docket records for this judge.
The as-assigned docket sample is dominated by exactly the surveillance/electronic-evidence docket Orenstein is nationally known for: cell-phone search-warrant applications, 18 U.S.C. 2703(d) stored-communications orders, and pen-register/trap-and-trace applications (all 1:16-mc filings dated 2016-05). This GROUNDS his surveillance-law profile in the docket but yields no civil motion-outcome or latency data. To get groundable docket_motions for this judge a future unit must pull specific OLDER terminated civil -JO dockets by docket_id (located via the referring district judge) and page get_docket_entries to the R&R/order entries.