Heir to historic Brennan's Restaurant loses appeal over attorney fees in trademark infringement suit

NEW ORLEANS –The heir to an historic New Orleans restaurant has lost an appeal involving $4.3 million in legal fees and penalties charged by a law firm in a trademark infringement lawsuit.

The U.S Court of Appeals for the Fifth Circuit dismissed Ted Brennan’s appeal of a lower court judgment in favor of Edward Colbert and Kenyon & Kenyon LLP, concluding that it lacks jurisdiction over the case. The court dismissed the appeal arising from the U.S. District Court for the Eastern District of Louisiana on May 6.

Edward Colbert, of the Washington, D.C. law firm Kenyon & Kenyon drafted a trademark agreement between Brennan’s Inc. and Dickie Brennan, a cousin of Brennan’s Inc. owners and brothers Owen Jr., James, and Ted Brennan in the late 1990s. Kenyon, on behalf of Brennan’s Inc., filed a $1 million trademark infringement lawsuit against Dickie Brennan after trademark disputes continued. It resulted in Brennan’s Inc. recovering $250,000 on a contract claim, but losing its trademark infringement claim. Kenyon billed Brennan’s Inc. more than $2 million in legal fees in connection with the suit.

During the course of a failed malpractice claim against Kenyon and a reconventional demand by Kenyon against Brennan’s Inc., it was ordered to pay outstanding fees and interest. That case is pending before the Louisiana Court of Appeals for the Fourth Circuit.

The district court imposed sanction on the defendants after they failed to comply with written discovery requests, subpoenas, and deposition notices, and five court orders compelling compliance. The district court ruled in favor of Kenyon on Dec. 18, 2012 allowing Kenyon to seek the debts owed to it by Ted Brennan, totaling $4,322,850.27 plus legal interest.

Ted Brennan appealed various decisions by the district court, but then moved to voluntarily dismiss his appeal on March 7, 2013, which was granted. He then filed a motion to vacate the prior dismissal and reinstate his appeal, five months later, arguing the dismissal had been part of a settlement agreement that had then failed. His appeal was reinstated. However, this ruling holds that the appeal was filed after too much time had passed from the initial ruling. The court ultimately ruled that it lacked jurisdiction to hear the appeal, and it was dismissed.

The appeal was heard by Chief Judge Carl E. Stewart and Circuit Judges Emilio M. Garza and Leslie H. Southwick.

Case No. 13-30069.