CASE 0:12-cv-02899-DWF-SER Document 603 Filed 11/21/17 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Select Comfort Corporation; and

Court File No. 12-cv-2899-DWF-SER

Select Comfort SC Corporation, Plaintiffs, v. John Baxter; Dires, LLC d/b/a Personal Touch Beds and Personal Comfort Beds; Digi Craft Agency, LLC; Direct Commerce, LLC d/b/a Personal Touch Beds; Scott Stenzel; and Craig Miller,

PLAINTIFFS’ MOTION FOR DETERMINATION OF ENTITLEMENT TO ATTORNEYS’ FEES AND NON-TAXABLE EXPENSES

Defendants. Plaintiffs Select Comfort Corporation and Select Comfort SC Corporation (“Plaintiffs”) respectfully move the Court for an Order granting their Motion for Determination of Entitlement to Attorneys’ Fees and Non-Taxable Expenses. Specifically, Plaintiffs ask that the Court deem this case exceptional under the Lanham Act, 15 U.S.C. § 1117(a), and determine that Defendants willfully engaged in a deceptive trade practice knowing it to be deceptive under the Minnesota Deceptive Trade Practices Act, Minn. Stat. § 325D.45(2), thus entitling Plaintiffs under both statutes to an award of attorneys’ fees and costs to be determined. Plaintiffs make this Motion under Federal Rule of Civil Procedure 54(d)(2) and understand that, pursuant to Local Rules 7.1(e) and 54.3(b), the Court will issue a briefing schedule for all parties with respect to this

CASE 0:12-cv-02899-DWF-SER Document 603 Filed 11/21/17 Page 2 of 3

Motion.1 As will be set forth in further detail in Plaintiffs’ memorandum of law in support of this Motion, which will be filed pursuant to the Court’s briefing schedule, the Court should make a determination as to entitlement to attorneys’ fees and costs. Specifically, the Court should determine that Plaintiffs are entitled to attorneys’ fees and costs under the Lanham Act and the Minnesota Deceptive Trade Practices Act in light of Defendants’ willful, deliberate, and knowingly false advertising. Plaintiffs estimate that they have incurred approximately $4.6 million in attorneys’ fees and $950,000 in costs in this lawsuit to date. Following the Court’s determination as to entitlement to attorneys’ fees and costs, Plaintiffs will be prepared to file an affidavit with documentation supporting the specific amount to be sought as well as briefing regarding the proper and reasonable amount of those fees and costs.2 This Motion will be based upon all the files, records, and proceedings herein, including memoranda of law to be filed in support of this Motion, supporting affidavits and exhibits, arguments of counsel, and the pleadings and proceedings in this matter.

1

Plaintiffs will separately file a bill of taxable costs under Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54.3(c) within 30 days of judgment having been entered.

2

This two-step procedure is appropriate in this district. See 3M Co. v. Mohan, 2010 WL 5095676, at *27–28 (D. Minn. Nov. 24, 2010) (first finding 3M entitled to attorneys’ fees) & 3M v. Mohan, 2011 WL 197219, at *4–6 (D. Minn. Jan. 19, 2011) (later analyzing the actual amount of fees 3M should be awarded); see also Hydreon Corp. v. JC Bros., Inc., 2016 WL 6826158, at *9–11 (D. Minn. Nov. 18, 2016) (finding case exceptional and directing the plaintiff to file application for attorneys’ fees supported by an affidavit and time records).

2

CASE 0:12-cv-02899-DWF-SER Document 603 Filed 11/21/17 Page 3 of 3

Dated: November 21, 2017

FOX ROTHSCHILD LLP By:

s/Andrew S. Hansen Andrew S. Hansen (# 285894) Samuel R. Hellfeld (# 390954) Dennis E. Hansen (# 386734) Elizabeth A. Patton (# 391431)

Campbell Mithun Tower, Suite 2000 222 South Ninth Street Minneapolis, Minnesota 55402 Telephone: (612) 607-7000 Facsimile: (612) 607-7100 E-Mail: [email protected] shellfeld@ foxrothschild.com dhansen@ foxrothschild.com epatton@ foxrothschild.com ATTORNEYS FOR PLAINTIFFS SELECT COMFORT CORPORATION AND SELECT COMFORT SC CORPORATION

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