
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2289                 STAR FINANCIAL SERVICES, INC., d/b/a STAR MORTGAGE,                                 Plaintiff, Appellee,                                          v.                  AASTAR MORTGAGE CORP., a/k/a ASTAR MORTGAGE CORP.,                                Defendant, Appellant.                                _____________________        No. 96-1323                  STAR FINANCIAL SERVICES, INC., d/b/a STAR MORTGAGE                                Plaintiff, Appellant,                                         v.                   AASTAR MORTGAGE CORP., a/k/a ASTAR MORTGAGE CORP.                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Philip X. Murray with  whom Lorusso & Loud was on brief for Aastar            ________________            ______________        Mortgage Corp.            Gary E. Lambert with whom Lambert & Ricci,  P.C. was on brief  for            _______________           ______________________        Star Financial Services, Inc.                                 ____________________                                    July 16, 1996                                 ____________________                      STAHL, Circuit Judge.  Star   Financial   Services,                      STAHL, Circuit Judge.                             _____________            d/b/a Star Mortgage ("STAR") brought an action against Aastar            Mortgage Corporation ("AASTAR") alleging, inter alia, service                                                      _____ ____            mark infringement and unfair trade practices.  A jury  agreed            that AASTAR  had unlawfully infringed on  STAR's service mark            under both  federal and  Massachusetts law.   Nonetheless, it            awarded no damages  on the infringement  claims.  Based  upon            the finding of infringement, the jury also returned a verdict            in favor of STAR on the unfair practices claim, Mass. Gen. L.            ch. 93A    2 and 11.                      Following  trial,  the  court permanently  enjoined            AASTAR from  any future reference  to itself as  "AASTAR" and            ordered  certain additional  remedial  action.   Pursuant  to            Mass. Gen.  L. ch. 93A   11,  the court also awarded  fees to            STAR's attorneys.  Shortly thereafter, the court found AASTAR            to  be in  civil contempt  for violating  the  injunction and            awarded attorneys' fees and costs  to STAR stemming from  the            contempt proceedings.                      Both  parties  appeal.   AASTAR  contends  that the            district  court erred in denying its motion for judgment as a            matter of law,  denying its request for  a trial continuance,            holding  AASTAR  in civil  contempt  and  awarding attorneys'            fees.   STAR appeals the  court's reduction in  the requested            amount of  attorneys' fees.  Addressing  these contentions in                                         -2-                                          2            turn (providing  facts as necessary), we  affirm the district            court in all respects.                                          I.                                          I.                                          __                   Denial of Motion for Judgment As a Matter of Law                   Denial of Motion for Judgment As a Matter of Law                   ________________________________________________            A.  Standard of Review            ______________________                      AASTAR argues that STAR  failed to produce evidence            sufficient  to  establish  service mark  infringement1  by  a            preponderance  of the  evidence and,  thus, the  court should            have  granted  its motion  for judgment  as  a matter  of law            pursuant  to Fed.  R. Civ. P.  50(a) &  (b).2   We review the            court's denial of the  Rule 50 motion de novo,  examining the                                                  __ ____            evidence in the light most  favorable to the nonmovant, STAR.            Golden Rule Ins. Co. v.  Atallah, 45 F.3d 512, 516  (1st Cir.            ____________________     _______            1995).  "[W]e may not  consider the credibility of witnesses,            resolve conflicts in testimony, or evaluate the weight of the            evidence."  Wagenmann v.  Adams, 829 F.2d 196, 200  (1st Cir.                        _________     _____            1987).  Reversal  of the  denial of the  motion is  warranted            "only if  the facts  and inferences  'point  so strongly  and                                            ____________________            1.  Although the  parties and the district  court referred to            this  case as a "trademark" infringement case, it is really a            dispute  over a "service  mark."  The  difference between the            two,  however, is not relevant  to our discussion, see Boston                                                               ___ ______            Athletic Ass'n v.  Sullivan, 867  F.2d 22, 23  n.1 (1st  Cir.            ______________     ________            1989), and  we will refer to the case as one of "service mark            infringement"  while considering  both trademark  and service            mark cases in our discussion.  See id.                                           ___ ___            2.  For  the  first time  on  appeal, AASTAR  requests  a new            trial.  Because it  did not timely request this  relief below            as  Fed. R. Civ. P. 59(b) requires, AASTAR may not now obtain            this relief.                                         -3-                                          3            overwhelmingly in favor of the movant' that a reasonable jury            could  not  have  reached  a  verdict  against  that  party."            Atallah, 45  F.3d at 516  (quoting Acevedo-Diaz v.  Aponte, 1            _______                            ____________     ______            F.3d 62, 66 (1st Cir. 1993)).  Thus, we present  the facts in            the light most favorable to STAR as the jury could have found            them.            B.  Facts            _________                      STAR is in the business  of "mortgage originating";            it receives information from individuals seeking  real estate            mortgage loans, completes applications with that information,            and then searches  the secondary market for a  lender willing            to offer the  mortgage sought.  STAR  has operated throughout            Massachusetts since its incorporation in 1993.                      In January  1994, STAR registered its  service mark            (which  it had used since the time of its incorporation) with            the Massachusetts  Secretary of  State.   At that time,  STAR            also  applied   for,  and  eventually   received,  a  federal            registration of the  mark.   The mark consisted  of the  word            "STAR" in bold, capital letters with a five-point star symbol            in  the  upper  portion  of  the  letter  "R"  and  the  word            "MORTGAGE"  in  smaller  capital  letters  beneath  the  word            "STAR."                      STAR used the mark  in all of its advertising.   It            spent  about   $2,000  per  month  (of   its  $5,000  monthly            advertising budget) for  advertisements in the  Suburban Real                                                            _____________                                         -4-                                          4            Estate News  ("The Suburban"), a free  publication about real            ___________    ____________            estate issued  in  several regional  editions  (e.g.,  north,                                                            ____            west,  south)  and   distributed  throughout   Massachusetts.            STAR's advertisements in The Suburban typically touted, inter                                     ____________                   _____            alia, access to various mortgage programs, favorable interest            ____            rates, low closing costs, timely credit approval and low down            payments.                      In May  1994,  AASTAR commenced  offering  mortgage            originating  services in  the  Massachusetts area.   It  also            placed  advertisements  in  The  Suburban  that,  like STAR's                                        _____________            advertisements,  promised  a  variety  of  mortgage programs,            favorable  interest  rates,  low  closing  costs  and  timely            approvals.   These advertisements  typically would  include a            "closing cost  certificate" to be clipped  out, entitling the            bearer to a $500.00 credit toward closing costs.                      AASTAR's advertisements contained the business name            "AASTAR MORTGAGE CORP." in bold, capital letters.   Its first            advertisement  in  The Suburban  depicted  a five-point  star                               ____________            symbol superimposed over the  first "A" in "AASTAR."   At one            time, AASTAR's  business cards also depicted  the star symbol            in that same letter,  but eventually the symbol was  moved to            the third and last "A" in "AASTAR."                        STAR's  president,  Jay  Austin,  noticed  AASTAR's            advertisement in a May 1994 edition of The Suburban.  He then                                                   ____________            wrote various letters to AASTAR's officers, informing them of                                         -5-                                          5            his  registered  mark,  requesting  them  to  cease  business            operations  under the "AASTAR" name and advising them to take            various remedial actions.  AASTAR did not respond.                      Actual   customers   confused   the  two   mortgage            originating companies.  In November 1995, a STAR customer who            had  already completed  an application  walked into  the STAR            office with a copy of The Suburban and asked why  she was not                                  ____________            offered the  rate advertised.  Austin  explained that AASTAR,            not  STAR, was advertising that rate.  On another occasion, a            customer who had completed an application at STAR returned to            its office with  AASTAR's closing-cost coupon  and, believing            the advertisement was for STAR's services, asked for the $500            credit.  On yet a different occasion in July 1994, a customer            had almost  completed an  application when she  presented the            STAR loan  originator with AASTAR's  $500 coupon.   The  loan            originator explained  that the customer had  confused the two            companies, and  after conferring with  a supervisor, credited            the customer the $500.                      Potential   customers   also   confused   the   two            companies.  Austin  would call individuals who had  placed an            initial call  to STAR to  inquire into its  services; several            times  during  these follow-up  calls,  the  individual would            indicate  that   he  or   she  had  "already"   completed  an            application with STAR.  When the person's name did not appear            in  STAR's records, Austin would call again to inquire if the                                         -6-                                          6            person was "sure" the application was with STAR; the response            would  be affirmative.  Austin  would then inquire  if it was            with  "AASTAR" or  "STAR";  at this  point  the person  would            indicate, "oh, it was AASTAR."            C.  Discussion            ______________                      The purpose of trademark laws is to prevent the use            of  the same  or similar  marks  in a  way that  confuses the            public about  the  actual source  of  the goods  or  service.            DeCosta  v. Viacom Int'l, Inc.,  981 F.2d 602,  605 (1st Cir.            _______     __________________            1992), cert. denied,  509 U.S. 923  (1993).  Confusion  about                   _____ ______            source  exists when a buyer is likely to purchase one product            in  the belief she was buying another and is thus potentially            prevented from obtaining the product she actually wants.  Id.                                                                      ___                      To prevail  in an action for  trademark (or service            mark) infringement, the plaintiff must establish: "1) that he            uses,  and thereby 'owns,' a  mark, 2) that  the defendant is            using   that  same  or  a  similar  mark,  and  3)  that  the            defendant's  use is  likely  to confuse  the public,  thereby            harming the plaintiff."  Id. at 605.  The harm  caused by the                                     ___            confusion  may be attributable  the defendant's appropriation            of  the  plaintiff's  goodwill   (perhaps  leading  to  sales            diversion),  or the  reduction in  the value  of the  mark by            virtue  of   the  association  of  the   plaintiff  with  the            defendant's own  "bad" name (so-called  "reverse confusion").            See id. at 608.            ___ ___                                         -7-                                          7                      AASTAR  contends  that  STAR  has failed  to  prove            "likelihood   of  confusion,"  an   essential  element  of  a            trademark  infringement claim  under  both Massachusetts  and            federal  law.    See  Astra Pharmaceutical  Prods.,  Inc.  v.                             ___  ___________________________________            Beckman  Instruments, Inc.,  718  F.2d 1201,  1205 (1st  Cir.            __________________________            1983);  Pignons S.A.  de Mecanique  de Precision  v. Polaroid                    ________________________________________     ________            Corp.,  657 F.2d  482, 486-87  (1st Cir.  1981).   We require            _____            evidence of a "substantial" likelihood of confusion  -- not a            mere possibility -- and  typically refer to eight factors  in            making the assessment:                      (1)  the similarity of the marks; (2) the                      similarity  of  the goods  [or services];                      (3) the relationship between the parties'                      channels of trade;  (4) the  relationship                      between the parties' advertising; (5) the                      classes  of  prospective purchasers;  (6)                      evidence  of  actual  confusion; (7)  the                      defendant's intent in adopting  the mark;                      (8) the strength of the plaintiff's mark.            Astra,   718  F.2d  at  1205.    None  of  these  factors  is            _____            necessarily controlling, but all  of them must be considered.            Id.;  Pignons S.A., 657 F.2d  at 487-92.   AASTAR attacks the            ___   ____________            evidence as to each factor.                      1.  Similarity of the marks                      ___________________________                      A jury  plainly could infer from  the evidence that            the   designations  "STAR  MORTGAGE"  and  "AASTAR  MORTGAGE"            (including  the star symbols)  were sufficiently similar such            that  prospective  purchasers  might  be  confused  about the            source of the  services desired.  While AASTAR emphasizes the                                         -8-                                          8            dissimilarity    of   some   individual   features   of   the            designations, a  jury could  supportably find that  the total            effect of the two -- including similarity in pronunciation --            was to create a probability of confusion.                      2.  Similarity of the services                      ______________________________                      AASTAR admits that both companies  offered the same            services.    Thus,  this  factor  indisputably   indicates  a            likelihood of confusion.                      3., 4.,  5.    Relationship  between  the  parties'                      ___________    ____________________________________            advertising, the parties' channels  of trade, and the classes            _____________________________________________________________            of prospective purchasers.3            _________________________                      The parties  both advertised in The  Suburban, thus                                                      _____________            providing evidence of overlap in their advertising strategies            and targets.   AASTAR attempts to  minimize this evidence  by            pointing  to the  undisputed evidence  that it  advertised in            many publications  in which  STAR did  not;  it asserts  that            thus,  the  parties "did  not  compete"  in those  particular            advertising channels.   This  argument, however,  is premised            upon the  unsupportable assumption  that because some  of the            advertising  channels differed, distinct classes of consumers                                            ____________________            3.  We  often analyze  these three  factors together,  and we            find it appropriate to do so here.  Equine Technologies, Inc.                                                _________________________            v. Equitechnology,  Inc.,  68 F.3d  542,  546 n.5  (1st  Cir.               _____________________            1995).                                         -9-                                          9            were  reached and  the relevant  consuming public  would view            mortgage-originating  advertisements in only  one source, and            hence, would not be confused.                      The evidence, however, supports a finding that STAR            and  AASTAR   targeted  the   same  classes  of   prospective            purchasers in the same  geographical areas, regardless of the            particular  advertising  channels employed.    This evidence,            combined with the fact that both companies  advertised in the            same publication,  would allow  a jury  to  view these  three            factors  (channels  of  advertising,  trade,  and  classes of            purchasers) in STAR's favor.                      AASTAR additionally argues  that the trial evidence            established that mortgage-shoppers  are highly  sophisticated            and  exercise great care in choosing a mortgage (often a one-            time  purchase)  and thus,  the  likelihood  of confusion  is            minimal.   While this argument  is not without  force, a jury            could find that this  evidence did not overwhelm the  bulk of            other evidence suggestive of confusion.                      6.  Actual Confusion                      ____________________                      AASTAR  concedes that STAR  presented evidence that            the companies'  names actually  confused consumers  about the            source of the services sought.  AASTAR challenges the  weight            of this evidence,  however, arguing that it  was presented by            "biased" STAR employees.  AASTAR also complains that  most of            the  purportedly  confused  customers  were  not  identified.                                         -10-                                          10            These  arguments,  however, properly  belong before  the fact            finder;  our  review  of  the  record  reveals  that  a  jury            reasonably could have credited the testimony regarding actual            confusion in favor of STAR.4                      7.  Intent                      __________                      AASTAR makes  much of the  fact that  there was  no            evidence that it  adopted its business  name in "bad  faith,"            i.e.,  with the intent  to take advantage  of STAR's goodwill            ____            and  promotion efforts.    Evidence of  bad intent,  however,            while potentially  probative of likelihood  of confusion,  is            simply   not  required  in  a  trademark  infringement  case;            moreover, "a finding of good faith is no answer if likelihood            of  confusion  is  otherwise  established."    President  and                                                           ______________            Trustees of Colby College v. Colby College-New Hampshire, 508            _________________________    ___________________________            F.2d 804, 811-12 (1st Cir. 1975).                      8.  Strength of the Mark                      ________________________                      AASTAR  contends  that  there  was  little evidence            regarding the  strength of STAR's  service mark and  that the            evidence that was  presented showed that  the mark was  weak.                                            ____________________            4.  AASTAR   also   resurrects    its   frustrations    about            difficulties  it experienced  in discovery  of witnesses  and            documents  needed by it to attack the weight of the testimony            about confusion.  While we agree with the district court that            STAR  was  less than  forthcoming  in  meeting its  discovery            obligations, the court  adequately addressed  the problem  by            precluding  STAR  from  presenting certain  witnesses  and by            providing   an  adverse   inference  instruction   about  one            customer.    In the  end,  AASTAR's  discovery arguments  are            irrelevant to  the  weight a  jury  could give  the  evidence            before it (on proper instructions).                                         -11-                                          11            In assessing a mark's  strength, the trier of  fact considers            evidence of  the length of time  the mark has  been used, its            renown  in  the  plaintiff's   field  of  business,  and  the            plaintiff's  actions   to   promote   the   mark.      Equine                                                                   ______            Technologies, Inc. v. Equitechnology,  Inc., 68 F.3d 542, 547            __________________    _____________________            (1st Cir.  1995).  The  relevant evidence presented  here was            that STAR's mark  was in use in the  relevant market area for            over  two years at the time of  trial, and that STAR expended            several thousand dollars per month in advertising.                      Even  assuming that this evidence constitutes small            support  for this factor (and, in fact, STAR admitted at oral            argument  before  this  court  that the  mark  was  not  very            strong),  "the strength  of  the mark  is  but one  of  eight            factors  to  be considered  in  analyzing  the likelihood  of            confusion  issue"  and sufficient  evidence of  other factors            will  sustain a finding of  likelihood of confusion.   Id. at                                                                   ___            546.                      In conclusion, we cannot say that a reasonable jury            could  not have  reached  a verdict  for  STAR based  upon  a            consideration  of  all   of  the  factors.    A   jury  could            supportably  find  that  the  marks and  services  were  very            similar, the targeted consumers were the same, and there  was            actual confusion as  to the source of  the mortgage services.            A  jury also could have  given little relative  weight to the            less-supported factors  of intent  and strength of  the mark.                                         -12-                                          12            While  the  evidence supporting  a substantial  likelihood of            confusion may  not have  been overwhelming, it  was adequate;            the court did not err in denying the motion for judgment as a            matter of law, and we will not disturb the jury's verdict.                                         II.                                         II.                                         ___                             Denial of Trial Continuance                             Denial of Trial Continuance                             ___________________________                      AASTAR   contends   that  the   court   abused  its            discretion  in refusing to  grant its motion  to continue the            trial.   On the  first day  of trial,  AASTAR filed  a motion            entitled  "DEFENDANT'S MOTION  TO CONTINUE  TRIAL OR,  IN THE            ALTERNATIVE, MOTION IN LIMINE."  In that motion, AASTAR urged            that  a  continuance was  warranted  because  STAR failed  to            produce a witness for deposition despite the court's order to            do  so,  and  because  STAR  was  effectively  "stonewalling"            discovery.                      AASTAR's  continuance  motion  also  requested  the            alternative  relief of  preclusion  of testimony  by  certain            witnesses and  preclusion of testimony by  Austin relating to            certain previously  unproduced documents.   The record  shows            that the court granted the "alternative relief" -- the motion            in limine -- and  that indeed, the witnesses in  question did            not testify.                      AASTAR  now complains that  Austin was  "allowed to            testify  unrestricted" and  attempts to  assign error  to the            court's refusal to grant the continuance.  We are unpersuaded                                         -13-                                          13            for  two reasons.    First, having  received the  alternative            relief  it requested,  AASTAR  cannot now  complain that  the            court did  not grant the  continuance.  Second,  while Austin            was allowed to testify about various documents that may  have            fallen  within the  in limine  order, the  record reveals  no            objection by AASTAR on  this basis during Austin's testimony.            On the  contrary, in  response to  the trial judge's  careful            inquiries, AASTAR indicated that it had no  objection to most            of the documents introduced through Austin.5                      In sum, we find  AASTAR's contention that the court            erred  in denying its request  for a trial  continuance to be            without merit.                                         III.                                         III.                                         ____                              The Civil Contempt Finding                              The Civil Contempt Finding                              __________________________                      After the jury returned its verdict on November 30,            1995,  the  district  court  issued  a permanent  injunction,            reflected in the following exchange:                           THE  COURT:   In view of  the jury's                      verdict,  the  defendant Aastar  Mortgage                      Corporation,   its   agents,    servants,                      employees, and all  other persons  acting                      in   concert    therewith,   are   hereby                      permanently  enjoined from  continuing to                      do business  under the name and  style of                      Aastar Mortgage Corporation with  two A's                      before   the   style,   Aastar   Mortgage                      Corporation with one  A before the style,                                            ____________________            5.  As to the documents that AASTAR did object to (but not on            the grounds of  the in  limine order), one  was precluded  on            hearsay grounds,  and another  was admitted with  an adequate            limiting instruction.                                         -14-                                          14                      and they shall  not in the  future . .  .                      for  so   long  as  the   plaintiff  Star                      Financial  Services   shall  possess  the                      trademark  Star Mortgage,  either federal                      or  state,  use  the letters  S-T-A-R  in                      their  name in  any combination  with any                      other  word.   Further, they shall  in no                      form or fashion  use a logo or  depiction                      of a five pointed star in relation to any                      of those words.  Fourth, they shall in no                      fashion refer to  themselves as  formerly                      Aastar   Mortgage   in   either  of   its                      capacities. . . .                           [I]n addition, Aastar Mortgage shall                      take  all  reasonable efforts  to recall,                      terminate    advertisements    with   the                      infringing marks and logos. . . .                           MR.  MURRAY  [Counsel  for  AASTAR]:                      Your Honor,  may I be heard  on one other                      thing?                      . . . .                      There  are  presently  several loans  and                      consumers about to close within  the next                      week   where   the  paperwork   has  been                      submitted  on HUD  forms and  things like                      that.  In light  of the fact that there's                      no  damage that's been found that relates                      to the  plaintiffs in this  case relative                      to the  use of that name, the defendants,                      in  order  to  provide  no  harm  to  the                      consumer, would like to  be able to close                      those loans with  the understanding  that                      there  would be  no  publication  and  no                      advertising relative to --                           THE COURT:  Any  forms that are  out                      of Aastar's office, either now before HUD                      or any lending  institution, they are not                      in my requirement of use of best efforts,                      they do  not have to recall  any consumer                      forms.   No  more forms  go out  with the                      word  Aastar  starting  now.     Tomorrow                      morning  no form,  no paper  goes  out of                      that  office  using  Aastar,   single  or                      double A's,  using the star or  using the                      word S T A R.                           That's the order of the Court.                                         -15-                                          15                      About  one  week   after  the  injunction   issued,            employees  at AASTAR sent  name-change facsimiles  to several            mortgage lenders.  These  notices displayed the "AASTAR" logo            (containing  a star symbol in  the third "A")  in large, bold            letters at the top of the page, and thereafter stated, "WE'VE            CHANGED  OUR NAME;  WE  ARE NOW  KNOWN  AS: AACTION  MORTGAGE            CORP.; PLEASE CORRECT YOUR RECORDS." STAR's           counsel            immediately notified AASTAR's counsel about  the notices, and            AASTAR ceased using them.  Over one month later, after it had            moved  and argued  for  attorneys' fees  from the  underlying            action,  STAR filed a motion for civil contempt stemming from            the   use  of  the  facsimiles.    The  court  then  held  an            evidentiary hearing on that motion.                      At the  hearing, employees of AASTAR  (now AACTION)            admitted  to  transmitting the  facsimiles,  but  professed a            belief that such  notices were in compliance with the court's            order,  as  modified.   Specifically,  they  stated that  the            notices were sent only to lenders with loans in progress, and            explained that "their interpretation"  of the injunction  was            that  the court only  ordered them to "do  the best that they            could" with respect to pending  loans.  One witness indicated            that  he  thought he  could "go  a  little further"  than the            court's injunction by informing  lenders (that, he said, were            processing loans that were "out of AASTAR's control")  of the            name  change with the facsimiles.  When queried by the court,                                         -16-                                          16            however,  all  of   the  witnesses  acknowledged  that   they            understood the court's order  -- specifically, "no paper goes            out of that office using Aastar" -- and that the notices fell            within that language.                      In explaining  its ruling on the  motion, the court            acknowledged AASTAR's substantial efforts  to comply with the            injunction,  but stated  that the  wording of  the  order was            clear and  unambiguous  and that  if there  were any  doubts,            clarification or modification from the court should have been            sought.   The  court  found that  AASTAR,  "in an  effort  to            preserve  the   goodwill  to   which  [it]  had   no  right,"            deliberately disobeyed the order.   Having found a "clear and            undoubted  disobedience,"  the  court held  AASTAR  in  civil            contempt, and ordered it  to pay attorneys' fees to  STAR (in            the amount of $750) as well as costs associated with bringing            the contempt proceeding.                      On appeal, AASTAR contends that the civil  contempt            finding was "unfair" because the injunction was overly broad,            ambiguous, and impossible to comply with.  We disagree.  As a            preliminary  matter,  we  note  that nothing  in  the  record            indicates  that  AASTAR  objected   to  the  breadth  of  the            injunction,  or complained  of  impossibility  of  compliance            either  before,  during  or  after  the contempt  proceeding.            AASTAR  raises these issues for  the first time  on appeal in            its  effort to avoid the  contempt citation, and  it does not                                         -17-                                          17            argue  that  it  continues   to  suffer  from  the  purported            overbreadth.  Thus, we will discuss the issues of the breadth            and  ability to  comply only  insofar as  they relate  to the            civil contempt adjudication.                      Next,  we agree  with the  district court  that the            injunctive  order was  not  ambiguous.   See  11A Charles  A.                                                     ___            Wright et  al., Federal Practice and  Procedure   2960 (1995)                            _______________________________            (explaining that,  in  civil-contempt proceeding,  the  court            must find that  the order  was clear and  unambiguous).   The            court  ordered  AASTAR to  cease all  use  of the  trade name            "AASTAR" or  its  star logo,  to  refrain from  referring  to            itself as  "formerly Aastar  Mortgage," and  to use  its best            efforts to  recall or cancel advertising  with the infringing            mark.   In response to  AASTAR's inquiry about  pending loans            and already-submitted paperwork, the court explained that any            such paperwork  was not  within its  requirement to use  best                                                                     ____            efforts to recall.  The court completed  its injunctive order            _________________            with the  following unequivocal  language: "No more  forms go            out with the word  Aastar starting now.  Tomorrow  morning no            form, no paper goes out  of that office using Aastar."   That            directive was clear.                      Based on  the evidence, we conclude  that the court            supportably found that AASTAR deliberately  and unjustifiably            disobeyed the injunction.  AASTAR's employees testified  that            they  did not intend to violate the injunction, and that they                                         -18-                                          18            transmitted the  facsimiles in  the belief that  that conduct            was  in  compliance with  the  order.    Such assertions  are            unavailing, however,  because good  faith, or the  absence of            willfulness, does not relieve a party from civil contempt  in            the face of a clear order.  McComb v. Jacksonville Paper Co.,                                        ______    ______________________            336  U.S. 187, 191 (1949) (explaining that "[a]n act does not            cease  to be  a violation  of a  law and  of a  decree merely            because it may have been done innocently"); Morales-Feliciano                                                        _________________            v. Parole Bd.  of P.R., 887 F.2d 1, 5  (1st Cir. 1989), cert.               ___________________                                  _____            denied, 494 U.S. 1046 (1990).            ______                      While  good faith  will not excuse  civil contempt,            impossibility of  compliance does constitute a  defense.  See                                                                      ___            Morales-Feliciano,  887  F.2d  at  5.   Here,  however,  even            _________________            assuming the  injunction was overbroad, AASTAR  has not shown            how its  particular conduct  stems from the  impossibility of            compliance  with the  order.   Rather,  the evidence  plainly            shows that  AASTAR's employees voluntarily  chose to transmit            the offending facsimiles.                      As  the district  court  correctly  admonished,  if            AASTAR was confused about the scope of the order or felt that            it  was unable to comply,  it should have  sought relief from            the court.   See McComb,  336 U.S.  at 192 (stating  that "if                         ___ ______            there were extenuating circumstances or if the decree was too            burdensome in  operation . .  . [the  contemnors] could  have            petitioned   the   District   Court   for   a   modification,                                         -19-                                          19            clarification  or construction  of the  order").   Instead of            seeking  help or  information from  either  the court  or its            attorney,  AASTAR's employees  "undertook  to make  their own            determination of what the decree meant" and thereby "acted at            their peril."  Id.                           ___                      For  the  above  reasons, we  uphold  the  district            court's adjudication of civil contempt.                                         IV.                                         IV.                                         ___                                Attorneys' Fees Award                                Attorneys' Fees Award                                _____________________                      The district court awarded attorneys' fees to  STAR            because  of the  jury's verdict  on the  Massachusetts unfair            practices claim.   See Mass.  Gen. L. ch. 93A,    11.  AASTAR                               ___            argues that  the court erred by awarding  attorneys' fees for            two reasons:  (1) the  court erroneously instructed  the jury            that, even if  it found no  actual damages, it  must award  a            minimum  statutory  damage  of  $25.00, and  (2)  because  no            damages were "actually" found, recovery of attorneys' fees is            precluded.   STAR contends that the court erred awarding less            than the amount it requested.            A.  Propriety of Attorneys' Fees Award            __  __________________________________                      STAR prevailed on its  unfair practices claim under            Mass. Gen. L. ch. 93A,    2 and 11.  Section  11 provides, in            part:                      If   the  court   finds  in   any  action                      commenced hereunder, that there  has been                      a  violation  of   [ch.  93A    2],   the                      petitioner  shall,  in addition  to other                                          _____________________                                         -20-                                          20                      relief provided for  by this section  and                      ____________________________________                      irrespective    of    the    amount    in                      controversy,   be    awarded   reasonable                      attorneys'  fees  and  costs incurred  in                      said action.            Mass.  Gen. L.  ch.  93A,    11  (emphasis added).    Another            provision in that section states:                      [The complainant], if he has not suffered                      any loss of money or property, may obtain                      . . .  an injunction if  it can be  shown                      that   the  .   .  .  unfair   method  of                      competition, act or practice may have the                      effect of causing such  loss of money  or                      property.            Id.            ___                      The  court  instructed the  jury  that a  statutory            minimum of  $25 must be  awarded if it  finds that  an unfair            practice has occurred under  Sections 2 and 11 of  Mass. Gen.            L.  ch. 93A.6  Accordingly,  the jury awarded  $25 in damages            on  that  claim,  even  though  it  awarded  nothing  on  the            infringement claims.  AASTAR contends that because the jury's            verdict indicates that STAR had  not been harmed by  AASTAR's            conduct,  attorneys'  fees  are  precluded  under  state  law            precedent.  We disagree.                      We note first that  because AASTAR failed to object            to the  "statutory damages"  instruction, our review  of that            issue,  if it  were  necessary  for  our decision,  would  be                                            ____________________            6.  There does not, in fact, appear to be a minimum statutory            damages provision in the statutes at issue in this case.  Cf.                                                                      ___            Mass. Gen. L. ch.  93A   9(a) (providing, in some  cases, for            minimum damages award of $25).                                         -21-                                          21            seriously limited.  Putting aside that issue for now, we find            even  assuming that the jury  had not awarded  any damages on            the unfair  practices claim,  attorneys' fees still  would be            warranted in light of the grant of injunctive relief.                      Section 11 provides that  a prevailing claimant  is            entitled  to attorneys'  fees  "in addition  to other  relief            provided  for by this section  and irrespective of the amount            in  controversy."  Mass. Gen. L. ch.  93A,   11.  The Supreme            Judicial Court of Massachusetts has interpreted that language            to  mean that "relief solely  in the form  of attorneys' fees            may not be had" but rather,  "a plaintiff must be entitled to            relief in  some other respect  in order to be  entitled to an            award  of attorneys'  fees."   Jet Line,  537 N.E.2d  at 115.                                           ________            Accordingly,  courts have  awarded attorneys'  fees not  only            when  damages were  awarded,  but also  where,  as here,  the            prevailing  plaintiff received injunctive  relief only.   See                                                                      ___            Jillian's  Billiard Club  of Am.,  Inc. v.  Beloff Billiards,            _______________________________________     _________________            Inc.,  619 N.E.2d  635,  639 (Mass.  Ct.  App. 1993),  review            ____                                                   ______            denied,  625  N.E.2d 1369  (Mass.  1993);  Informix, Inc.  v.            ______                                     ______________            Rennell, No. 931265,  1993 WL  818555, at *  5 (Mass.  Super.            _______            Ct., Sept. 27, 1993); see also Advanced Sys. Consultants Ltd.                                  ___ ____ ______________________________            v. Engineering  Planning and  Management, Inc., 899  F. Supp.               ___________________________________________            832,  833-34 (D.  Mass.  1995); cf.  Levy  v. Bendetson,  379                                            ___  ____     _________            N.E.2d 1121, 1126 (Mass. Ct. App. 1978) (reversing attorneys'                                         -22-                                          22            fees award where  party received no  relief under Section  11            "either by way of damages or injunction or otherwise").                      In  support  of  its  position,  AASTAR  cites  the            following language  from Jet  Line: "A plaintiff  suing under                                     _________              11,  however,  cannot  recover attorneys'  fees  for merely            identifying an  unfair or deceptive  act or practice.   Under              11, that  unfair or  deceptive conduct  must have had  some                                                      ___________________            adverse  effect  upon  the  plaintiff,  even  if  it  is  not            _____________________________________________________________            quantifiable  in  dollars."    537 N.E.2d  at  115  (emphasis            _________________________            added).  Given the  context of Jet Line, however,  we find it                                           ________            inappropriate to interpret that language as AASTAR seeks.  In            Jet  Line,  the  court  remanded the  attorneys'  fees  issue            _________            because of  a question regarding liability  on the underlying                                             _________            claim; it  also appears that,  while actual damages  may have            been questionable, the  plaintiff did not request  injunctive            relief.  See generally, id.                      ___ _________  ___                      Moreover,  the   language  in  Jet   Line  is   not                                                     __________            necessarily inconsistent with an  award of attorneys' fees to            a plaintiff that receives injunctive relief only.  Section 11            provides for injunctive relief where the unfair practice "may            have the effect of causing .  . . loss of money or property."            Mass. Gen. L.  ch. 93A,   11.  Surely a  demonstrated risk of            future actual  loss  constitutes an  unquantifiable  "adverse            effect"  within the meaning of  Jet Line.   To hold otherwise                                            ________            would discourage  victims  of  unfair  trade  practices  from                                         -23-                                          23            seeking legal redress  until after  actual loss  of money  or            property occurred, even where  the victim demonstrates a risk            of such loss.            B.  The Amount of the Award            __  _______________________                      The court  awarded only $18,000 of STAR's requested            $35,153.25 in attorneys' fees, representing some 240 hours of            work  by trial counsel and his associate attorney.  In ruling            on  the   fee  application,  the  court,   citing  Heller  v.                                                               ______            Silverbranch Constr.  Corp.,  382 N.E.2d  1065,  1071  (Mass.            ___________________________            1978), found that,  while STAR's attorneys  did not spend  an            unreasonable amount of time  on the action, "it ought  not be            compensated  at the  rate that  the attorneys  charge."   The            court stated,  "[i]t does seem to  this Court that  a rate of            $175 per hour  for the  services . .  . would  overcompensate            [STAR]  in view of the . . . relative simplicity . . . of the            matter."   The court continued, "[t]herefore,  the fair value            of the services  to the plaintiff is,  in this case, not  the            $35,000 . . . sought by the plaintiffs, but $27,000."                      The court  then reduced the award  by an additional            $9,000 to $18,000, explaining that it had considered "factors            that  are implicit  in the  duty of  attorneys to  the Court"            including:                       the  approach that  the attorney  took to                      the  litigation;  the  care   with  which                      settlement  was  evaluated and  discussed                      with  the  other  side;  the  prompt  and                      lawyer-like preparation of  the case  for                      trial, or its  alternative; the  faithful                                         -24-                                          24                      [sic]  requirement  imposed upon  counsel                      for full and forthcoming discovery.                      In light of these  factors, the court observed that            STAR's  counsel had been  deficient in two  respects:  first,            after obtaining a very early trial date, counsel departed for            a hunting trip having  not delegated the authority  to handle            case  preparation or settlement; second, on the eve of trial,            counsel took it  upon himself  to remove a  witness from  his            proposed witness  list despite  the court's order  to produce            that  witness,   and  then   failed,  during  trial,   to  be            "faithfully forthcoming with respect to appropriate discovery            of the witness," also despite a clear court order.  The court            also  opined that even  though the conduct  of STAR's counsel            was  not "unethical,"  it was  "less than  what the  Court is            entitled to obtain  from the  attorneys who  practice at  its            bar."    The  court  concluded  that  counsel's  deficiencies            "stunted the time necessary for discussion of settlement" and            found "very questionable" counsel's unavailability to discuss            settlement  at  all times  prior  to  trial, given  that  the            dispute was essentially over damages.                      Massachusetts  law  controls  the  attorneys'  fees            question  here.   Peckham v.  Continental Casualty  Ins., 895                              _______     __________________________            F.2d 830, 841 (1st Cir. 1990).   Our review is plenary to the            extent  STAR  argues that  the  court's reasons  for  the fee            reduction were erroneous as  a matter of law.  See Lipsett v.                                                           ___ _______            Blanco,  975 F.2d 934,  942 (1st Cir.  1992).   To the extent            ______                                         -25-                                          25            STAR challenges the court's  determination that the case fits            factually  within a legally  acceptable reduction  theory, we            review for abuse of discretion.  See id. at 942 n.7; see also                                             ___ ___             ___ ____            id.  at  937 ("[B]ecause  determination  of the  extent  of a            ___            reasonable  fee  necessarily  involves a  series  of judgment            calls, an appellate court is far more  likely to defer to the            trial court in  reviewing fee computations than in many other            situations.").                      While there is no "pat formula" for computing a fee            award under Massachusetts law, Peckham, 895  F.2d at 830, the                                           _______            amount  awarded should  be determined  by what  the "services            were  objectively worth,"  Heller, 382  N.E.2d at  1071.   In                                       ______            making this calculation, the court may consider a variety  of            factors,  including:    the  amount  of  time  expended,  the            complexity of  the legal and  factual issues, the  quality of            the  attorneys'  services,  the  amount of  damages  and  the            results secured.    Peckham, 895  F.2d at  841; Linthicum  v.                                _______                     _________            Archambault,  398 N.E.2d  482, 488  (Mass. 1979).   No single            ___________            factor  is necessarily  dispositive of  the  services' worth.            See  Cummings v.  National Shawmut  Bank,  188 N.E.  489, 492            ___  ________     ______________________            (Mass.  1934).    In  the end,  the  court's  calculation  is            "largely discretionary," Linthicum, 398 N.E.2d at 488, and an                                     _________            appellate court should "defer to any thoughtful rationale and            decision developed by a trial court and . . . avoid extensive                                         -26-                                          26            second guessing."   Grendel's Den, Inc.  v. Larkin, 749  F.2d                                ___________________     ______            945, 950 (1st Cir. 1984).                      STAR  first attacks  the court's  initial reduction            from the requested $35,153.25 to $27,000.  STAR contends that            this reduction resulted from "mathematical error" because the            court erroneously  assumed that counsel charged  $175/hr. for            all  of his  work, when in  fact, most  of it  was charged at            ___            $150/hr. (while the associate  attorney's work was charged at            the  rate of $125/hr.).  STAR asserts that because only 10.75            hours  were  charged  at  $175/hr.,  the  court  should  have            deducted  only  about  $260  (representing   the  approximate            difference between 10.75 billed at $175/hr. and at $150/hr.),            rather than the $8,153.25 that it did.                      Upon  careful   review  of   the  record,   we  are            unpersuaded  by  STAR's  assertion of  "mathematical  error."            STAR's  position assumes  that the  court, when  declining to            award  at the  $175/hr. rate  for trial  counsel, necessarily            intended  instead to award for his work at the $150/hr. rate.            We find, however, that the numbers simply do not support this            underlying assumption.7                                            ____________________            7.  STAR's request for some $35,000  in fees, which the court            found excessive, reflected about 164  hours of work by  trial            counsel  (some  hours at  the  $150/hr. rate,  others  at the            $175/hr.  rate), and  about  82 hours  of  work by  associate            counsel (at  a $125/hr. rate),  for a total  of approximately            246 hours.  Simple  division of the awarded  amount ($27,000)            by  the hours expended (246)  reveals that the  court did not            find  even a $150/hr. rate  reasonable for this  case, not to            mention the $175/hr.  rate.  Thus,  STAR's argument that  the                                         -27-                                          27                      Moreover, when STAR  clearly laid out this  precise            argument  to the  district court in  the form of  a motion to            amend  or make  additional  findings under  Fed.  R. Civ.  P.            52(b), the  court considered and denied  the motion, stating:            "The findings are fully adequate under both state and federal            law."  A fair conclusion from the record is that although the            court found  that counsel  had in  fact expended the  claimed            amount  of time  on  the case,  the  simplicity of  the  case            rendered  the fees  excessive and  warranted a  reduction for            over-lawyering.     Thus,  we  affirm   the  court's  initial            reduction from $35,000 to $27,000.                      STAR  also contends  that  the court  erred in  its            additional  fees reduction,  from $27,000  to $18,000.   STAR            argues that  the articulated  reasons for that  reduction are            insupportable as a  matter of law  and on the  facts of  this            case.   In  particular, STAR  asserts that  when  its counsel            informed  the court of  his planned  hunting trip,  the court            stated that  it would "respect"  those plans.   STAR contends            that it was  error to  then "punish" counsel  for taking  his            vacation and being unavailable  to handle any developments in                                            ____________________            court erroneously  based  its award  on its  belief that  the            higher  rate  was  excessive  does not  support  its  implied            conclusion that the court  must have found the $150/hr.  rate            to  be reasonable.  Rather,  it appears that  the court found            both  rates excessive, and  adjusted the  amount accordingly.            STAR  has not  argued that  the court  erred in  its apparent            finding that even the $150/hr. rate was excessive or that the            court otherwise erred in calculating the lodestar.                                         -28-                                          28            the  case.8  STAR argues that no reduction should result from            its  deletion of a witness because it ultimately produced the            witness (albeit on  the last  day of trial)  and because  the            court opined that the witness would not have given  testimony            favorable to AASTAR in  any event.  STAR argues  finally that            "stunting the time necessary for discussion of settlement" is            an  impermissible factor  to be  considered in  an attorneys'            fees award.                      The  district  court  reduced the  attorneys'  fees            award from $27,000  to $18,000 because  it found that  STAR's            counsel  had   not  fulfilled   his   obligations  in   trial            preparation,    negotiation    and    discovery.        These            considerations, including "the stunting of time necessary for            discussion of settlement," plainly  reflect upon the "quality            of  work performed," one of  the factors to  be considered in            calculating  the fee award.   See Heller, 382  N.E.2d at 629.                                          ___ ______            We have  no difficulty finding that  an attorney's competence            extends  to her  compliance  with obligations  to the  court,            which  may  ultimately affect  the value  of services  to her            client.  Thus, the court did not err  in citing these reasons            in determining the "objective worth" of counsel's services.                                            ____________________            8.  We  find  most unpersuasive  STAR's  additional assertion            that, had  counsel not taken  his planned vacation,  he would            have "necessarily" spent more  time preparing the case which,            in turn, would have resulted in additional attorneys' fees.                                         -29-                                          29                      We also uphold  the district court's  determination            that the  facts of  this case  merit the reduction.9   As  to            STAR's assertion  that the court  first "respected" counsel's            vacation plans but then  "punished" him for it, we  note that            the  court respected  counsel's  plans only  insofar as  they            affected  the trial date; in no manner did the court indicate            that counsel was otherwise excused from his trial obligations            while  he was on the hunt.   With regard to counsel's failure            to  produce a witness, in  defiance of the  court's order, we            think that whether or  not the witness ultimately  would have            helped  AASTAR is  irrelevant to counsel's  initial discovery            obligation.   Finally,  we reject  STAR's assertion  that the            court penalized  counsel for  not settling the  case; rather,            the court  found that  counsel's deficiencies  in performance            hindered  the  opportunity  for settlement,  thus  negatively                           ___________            reflecting upon his services.   We cannot say that  the court            abused its broad discretion in making these determinations.                      Therefore,   we   affirm   the   district   court's            attorneys' fees award in all respects.10                                         IV.                                         IV.                                         ___                                            ____________________            9.  While STAR argues that the reasons for  the fee reduction            were  erroneous, it  does not  argue that  the degree  of the            reduction was unreasonable.            10.  The court ordered  AASTAR to  pay costs  "in the  amount            prayed for," which was $2,588.24, and AASTAR has  not opposed            the  amount of that request.   Thus, we  will not disturb the            costs award to STAR in the amount of $2,588.24.                                         -30-                                          30                                      Conclusion                                      Conclusion                                      __________                      For the foregoing reasons,  we affirm the fee award                                                     ______            and judgment of the district court.                                         -31-                                          31
