     18-2328-cv
     Benihana of Tokyo, LLC v. Benihana Inc.

                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   21st day of June, two thousand nineteen.
 4
 5   Present:    PIERRE N. LEVAL,
 6               ROSEMARY S. POOLER,
 7               DENNY CHIN,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   BENIHANA OF TOKYO, LLC, AS SUCCESSOR TO
12   BENIHANA OF TOKYO, INC.,
13
14                            Plaintiff-Counter-Defendant-Appellant,
15
16   KEIKO AOKI,
17
18                            Counter-Defendant-Appellant.
19
20                            v.                                                18-2328-cv
21
22   BENIHANA INC., AS SUCCESSOR TO
23   BENIHANA NATIONAL CORP., NOODLE TIME, INC.,
24
25                     Defendants-Counter-Claimants-Appellees.
26   _____________________________________________________
27
28   Appearing for Appellants:         Jeremy W. Schulman, Schulman Bhattacharya, LLC,
29                                     Bethesda, MD.
30
 1   Appearing for Appellees:       Alan H. Fein, Stearns Weaver Miller Weissler Alhadeff &
 2                                  Sitterson, P.A. (Joshua A. Munn, Jenea M. Reed, on the brief),
 3                                  Miami, FL.
 4                                  Nicole Gueron, Clarick Gueron Reisbaum, LLP New York, N.Y.
 5                                  (on the brief)
 6
 7   Appeal from the United States District Court for the Southern District of New York
 8   (Engelmayer, J.).
 9
10        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
11   AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
12
13            Benihana of Tokyo, LLC appeals from the July 25, 2018 opinion and order of the United
14   States District Court for the Southern District of New York (Engelmayer, J.) awarding Benihana
15   Inc. fees and costs totaling $936,665.24 pursuant to Section 1117 of the Lanham Act. We
16   assume the parties’ familiarity with the underlying facts, procedural history, and specification of
17   issues for review.
18
19            We affirm for substantially the reasons set forth in the district court’s thorough and well-
20   reasoned opinion. The Lanham Act provides for the “award [of] reasonable attorney’s fees to the
21   prevailing party” in “exceptional cases.” 15 U.S.C. § 1117(a). We find no error in the district
22   court’s conclusion that Benihana Inc. is the prevailing party. We also affirm the district court’s
23   finding that this case presents “exceptional circumstances.” See Sleepy’s LLC v. Select Comfort
24   Wholesale Corp., 909 F.3d 519, 530 (2d Cir. 2018) (“‘[A]n ‘exceptional’ case is simply one that
25   stands out from others with respect to the substantive strength of a party’s litigating position
26   (considering both the governing law and the facts of the case) or the unreasonable manner in
27   which the case was litigated.”) (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
28   572 U.S. 545, 554 (2014)). In considering whether there are “exceptional circumstances,” a
29   district court is to consider “a wide variety of factors, including ‘frivolousness, motivation,
30   objective unreasonableness (both in the factual and legal components of the case) and the need in
31   particular circumstances to advance considerations of compensation and deterrence.’” Id.
32   (quoting Octane Fitness, 572 U.S. at 554 n.6).
33
34          We have considered the remainder of appellants’ arguments and find them to be without
35   merit. Accordingly, the order of the district court hereby is AFFIRMED.
36
37
38                                                         FOR THE COURT:
39                                                         Catherine O’Hagan Wolfe, Clerk
40




                                                      2
