Puma v. W-Mart Stores East

• Court: New Mexico Court of Appeals
• Decided: August 9, 2022
• Status: Unpublished

Opinion

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: ________________

3 Filing Date: August 9, 2022

4 No. A-1-CA-38023

5 BRUCE PUMA and KATHLEEN PUMA, 6 for Themselves and All Others Similarly 7 Situated,

8 Plaintiffs-Appellees/Cross-Appellants,

9 v.

10 WAL-MART STORES EAST, LP; APPLICA 11 CONSUMER PRODUCTS, INC.; and THE 12 BLACK & DECKER CORPORATION,

13 Defendants-Appellants/Cross-Appellees.

14 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 15 C. Shannon Bacon, District Judge

16 Floyd D. Wilson, P.C. 17 Floyd D. Wilson, 18 Cedar Crest, NM

19 Freedman Boyd Hollander Goldberg Urias & Ward, P.A. 20 David A. Freedman 21 Christopher A. Dodd 22 Albuquerque, NM

23 for Appellee

24 Holland & Hart LLP 25 Larry J. Montaño 26 Santa Fe, NM 1 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 2 Jennifer G. Anderson 3 Albuquerque, NM

4 Mitchell, Silberberg & Knupp LLP 5 Jeffrey Richardson 6 Gilbert S. Lee 7 Los Angeles, CA

8 for Appellants

9 McCoy Leavitt Laskey LLC 10 H. Brook Laskey 11 Albuquerque, NM

12 Goldberg Segalla LLP 13 Laura A. Colca 14 Buffalo, NY

15 for Amicus Curiae Society of Product Licensors Committed to Excellence 1 OPINION

2 BOGARDUS, Judge.

3 {1} This appeal and cross-appeal arise in response to the district court’s decisions

4 relating to Bruce and Kathleen Puma’s (the Pumas) claim that Wal-Mart Stores East

5 LP, Applica Consumers Products, Inc., and The Black & Decker Corporation

6 (collectively, Defendants) violated the Unfair Practices Act (the UPA), NMSA 1978,

7 §§ 57-12-1 to -26 (1967, as amended through 2019). The parties argue whether the

8 district court correctly determined or erred in (1) concluding that Defendants

9 violated the UPA; (2) denying the Pumas damages based on unjust enrichment; and

10 (3) awarding the Pumas certain attorney fees. We affirm in part and reverse in part.

11 BACKGROUND

12 {2} This case arises from the Pumas’ purchase of a Black & Decker Corporation

13 (Black & Decker) branded CM1050 B coffeemaker (the Coffeemaker) from a Wal-

14 Mart store in Albuquerque, New Mexico in May 2013. At the time, Wal-Mart

15 displayed models of various coffeemakers, including the Coffeemaker. Apart from

16 its display model and box, Wal-Mart did not display any advertising for the

17 Coffeemaker. The Pumas compared various coffeemakers, reviewing the boxes of

18 various models, including the box in which the Coffeemaker was packaged. The

19 Pumas also saw the display model of the Coffeemaker. Wording on both the 1 Coffeemaker and its box stated it was a Black & Decker product. The Coffeemaker

2 and its box also displayed the Black & Decker hexagon logo used at the time.

3 {3} The Pumas sought a reliable coffeemaker, and Mr. Puma had owned Black &

4 Decker tools in the past without any concerns about quality. Black & Decker is a

5 well-known company that has a reputation for producing well-built products for

6 good value. Mr. Puma believed that the Coffeemaker was a Black & Decker product

7 that he could purchase without any problems, Mrs. Puma believed the Coffeemaker

8 was a better product than Wal-Mart’s lower-priced store-brand coffeemaker, and the

9 Pumas were willing to pay more for the Coffeemaker than the store-brand

10 coffeemaker to the extent the Coffeemaker was a better, more reliable product. The

11 Pumas paid $19.92 for the Coffeemaker, believing it was a Black & Decker product.

12 {4} Although Black & Decker has at all relevant times continued to produce and

13 sell consumer products with the Black & Decker name and logos, Black & Decker

14 did not design, manufacture, distribute, or warrant the Coffeemaker. Rather, the

15 Coffeemaker was an Applica Consumers Products, Inc. (Applica) product. Applica

16 and Black & Decker were parties to a trademark licensing agreement whereby

17 Applica paid royalties to Black & Decker in exchange for Applica’s ability to use

18 the Black & Decker name and trademarks in the sale of small kitchen appliances,

19 including the Coffeemaker. There is no corporate affiliation between Black &

2 1 Decker and Applica, and a consumer reading the information on the Coffeemaker’s

2 box would not know of any relationship between Black & Decker and Applica.

3 {5} The Pumas sued Defendants, asserting various claims, including violations of

4 the UPA based on the Coffeemaker’s branding (the UPA name brand claim) and

5 capacity (the 12-cup claim), unjust enrichment, and breach of duty on behalf of other

6 individuals who bought the Coffeemaker. The district court certified a class defined

7 to include persons who purchased the Coffeemaker at a New Mexico Wal-Mart store

8 from 2009 to 2013, approximately 40,600 class members.

9 {6} Following a bench trial, the district court entered findings of fact and

10 conclusions of law. As to the Pumas’ UPA name brand claim, the district court

11 concluded that Defendants’ conduct constituted an “unfair or deceptive trade

12 practice.” The district court also concluded that, pursuant to the UPA, the Pumas

13 were entitled to $300 in statutory damages and attorney fees, but because the class

14 could not establish actual damages, it was not entitled to damages. With regard to

15 the unjust enrichment claim, the district court concluded that, although the Pumas

16 and class members had not received a Black & Decker product in purchasing the

17 Coffeemaker, the Pumas were not entitled to damages for unjust enrichment because

18 they had not met their burden of proof in establishing the amount of these damages.

19 {7} The Pumas moved for attorney fees and requested a lodestar amount

20 representing the fees billed for the entire case and a 2.0 multiplier. After a hearing

3 1 on the motion, the district court awarded a lodestar that represented a reduction of

2 the amount requested by the Pumas, but that was not reduced as significantly as

3 Defendants argued was appropriate. Further, the district court applied a multiplier of

4 1.5 to the lodestar.

5 {8} Defendants appeal and the Pumas cross-appeal.

6 DISCUSSION

7 I. The District Court Did Not Err in Concluding Defendants Violated the 8 UPA

9 A. The Lanham Act Issue 1

10 {9} In their posttrial closing brief, Defendants argued that their use of the “Black

11 & Decker” trademark on the Coffeemaker2 did not constitute an unfair or deceptive

12 trade practice under the UPA because the Trademark Act of 1946 (Lanham Act), 15

13 U.S.C. §§ 1051 to 1141n, which governs federal trademark law, countenanced their

14 use of the trademark.

15 {10} Under the Lanham Act, registered trademarks may “be used legitimately by

16 related companies.” 15 U.S.C. § 1055. “Related companies” include “any person

17 whose use of a mark is controlled by the owner of the mark with respect to the nature

1 We allowed amicus briefing from the Society of Product Licensors Committed to Excellence on this issue as well as responsive briefing from the Pumas. 2 Our references in this opinion to use of the Black & Decker trademark in branding the Coffeemaker includes use of the company name and hexagon logo on the Coffeemaker’s box.

4 1 and quality of the goods or services on or in connection with which the mark is

2 used.” 15 U.S.C. § 1127. Defendants thus asserted that, under the Lanham Act, a

3 trademark owner (here, Black & Decker) may grant a license and be protected as

4 long as the trademark owner exercises quality control of the goods sold under its

5 trademark by the licensee (here, Applica). Defendants thus contended that, under the

6 Lanham Act, the ultimate source or manufacturer of a product need not be identified

7 by a brand name as long as the trademark owner exercises sufficient oversight over

8 the nature and quality of the goods sold under its licensed mark. Defendants argued

9 that their collective use of the Black & Decker trademark comported with the

10 Lanham Act because Black & Decker and Applica entered into a trademark licensing

11 agreement that permitted Applica to market the Coffeemaker under the Black &

12 Decker name and mandated that Black & Decker exercise control and oversight to

13 ensure the Coffeemaker met Black & Decker’s quality standard. In essence,

14 Defendants argue that if the Lanham Act allows Applica to market the Coffeemaker,

15 the arrangement cannot constitute a violation of the UPA. We disagree.

16 {11} Rejecting Defendants’ contentions in this regard, the district court issued a

17 letter stating that the Lanham Act did not apply in the context of a UPA claim. The

18 district court then entered findings of fact and conclusions of law, ruling that

19 Defendants’ branding of the Coffeemaker constituted an unfair or deceptive trade

20 practice under the UPA.

5 1 {12} On appeal, Defendants argue the district court committed legal error in

2 arriving at its UPA branding decision without applying the Lanham Act. Because

3 the district court’s judgment arises from its misunderstanding of trademark law,

4 Defendants argue, certain disputed findings of fact warrant no deference. See

5 Hughes v. Hughes, 1978-NMSC-002, ¶ 52, 91 N.M. 339, 573 P.2d 1194 (“[A

6 district] court’s findings of fact, where based on an erroneous legal theory, are not

7 binding on the appellate court.”). Defendants also argue that their proposed findings

8 of fact relating to Black & Decker’s oversight of products Applica sold under its

9 trademark should be deemed admitted, leaving us to decide only whether they are

10 material. In sum, Defendants argue that we should apply Lanham Act precedent to

11 reverse the district court’s erroneous interpretation of trademark licensing

12 agreements.

13 1. Standard of Review

14 {13} We apply a de novo standard of review to determine whether the district court

15 applied the correct legal standard. See Brooks v. Norwest Corp., 2004-NMCA-134,

16 ¶ 7, 136 N.M. 599, 103 P.3d 39 (“Although a misapplication of the law is considered

17 an abuse of discretion, our courts review de novo the initial decision of whether the

18 correct legal standard has been applied.”). To the extent Defendants’ appeal requires

19 us to interpret the UPA, our review is de novo. See Cates v. Mosher Enters., Inc.,

20 2017-NMCA-063, ¶ 14, 403 P.3d 687 (“We review interpretation of statutory

6 1 provisions de novo.”); Aguilera v. Palm Harbor Homes, Inc., 2004-NMCA-120, ¶ 6,

2 136 N.M. 422, 99 P.3d 672 (“This dispute requires us to determine the correct

3 application of the UPA as well as the effect of the Uniform Arbitration Act on [the

4 plaintiff’s] UPA claims. These are questions of statutory interpretation subject to de

5 novo review.”).

6 2. Legislative Intent of the UPA

7 {14} Because the district court concluded that Defendants’ branding of the

8 Coffeemaker violated the UPA, we look to whether our Legislature intended that our

9 courts’ application of the UPA be guided by or should incorporate Lanham Act

10 precedent. “In interpreting statutes, we seek to give effect to the Legislature’s intent,

11 and in determining intent we look to the language used and consider the statute’s

12 history and background.” Key v. Chrysler Motors Corp., 1996-NMSC-038, ¶ 13, 121

13 N.M. 764, 918 P.2d 350. “To determine legislative intent, we look not only to the

14 language used in the statute, but also to the purpose to be achieved and the wrong to

15 be remedied.” Britton v. Off. of Att’y Gen., 2019-NMCA-002, ¶ 27, 433 P.3d 320

16 (internal quotation marks and citation omitted).

17 {15} “The Legislature intended the UPA to serve as remedial legislation for

18 consumer protection, and we interpret the provisions of this Act liberally to facilitate

19 and accomplish its purposes and intent.” Gandydancer, LLC v. Rock House CGM,

20 LLC, 2019-NMSC-021, ¶ 24, 453 P.3d 434 (internal quotation marks and citation

7 1 omitted). “New Mexico cases have historically interpreted the UPA to focus

2 exclusively on consumer protection, protecting innocent consumers.” Id. ¶ 29

3 (internal quotation marks and citation omitted); see id. ¶ 20 (stating that in removing

4 the phrase “unfair methods of competition” from both the title and the definition

5 section and from the declaration of unlawfulness, “the Legislature intended to

6 remove competitive injury claims from the protected zone of interest” and

7 concluding the alteration demonstrated “an intent to limit the zone of interest

8 protected from unfair trade practices by the UPA to consumers, not competitors”).

9 {16} The Lanham Act, by contrast, “was intended to make actionable the deceptive

10 and misleading use of marks and to protect persons engaged in commerce against

11 unfair competition.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 767-68

12 (1992) (omission, internal quotation marks, and citation omitted). In construing the

13 Lanham Act, which provides that “[t]he intent of [the Act] is . . . to protect persons

14 engaged in [congressionally regulated] commerce against unfair competition,” 15

15 U.S.C. § 1127, “[a]t least half of the circuits hold (and none of the others disagree)

16 that [this section] bars a consumer from suing under the [Lanham] Act.” Made in the

17 USA Found. v. Phillips Foods, Inc., 365 F.3d 278, 280 (4th Cir. 2004); see, e.g.,

18 Serbin v. Ziebart Int’l Corp., 11 F.3d 1163, 1179 (3d Cir. 1993) (concluding that

19 when Congress authorized federal courts to deal with false advertising claims under

20 the Lanham Act, it “did not contemplate that federal courts should entertain claims

8 1 brought by consumers”). Thus, while consumers may benefit from the Lanham Act’s

2 application, see Radiance Found., Inc. v. NAACP, 786 F.3d 316, 321 (4th Cir. 2015)

3 (stating that the Lanham Act’s trademark protection provisions “protect consumers

4 from confusion in the marketplace”), the Act’s purpose—unlike the UPA—is to

5 protect persons engaged in commerce. See Colligan v. Activities Club of N.Y., Ltd.,

6 442 F.2d 686, 692 (2d Cir. 1971) (“The [Lanham] Act’s purpose, as defined in

7 [Section] 45, is exclusively to protect the interests of a purely commercial class

8 against unscrupulous commercial conduct.”).

9 {17} We next look to the language of the UPA to determine whether the Legislature

10 intended that our courts’ application of the UPA be guided by federal precedent

11 interpreting the Lanham Act. Several UPA provisions prove relevant. Section 57-

12 12-4 provides that, in construing Section 57-12-3—which prohibits unfair or

13 deceptive trade practices—“the courts to the extent possible will be guided by the

14 interpretations given by the federal trade commission [(FTC)] and the federal

15 courts.” Defendants contend this language does not mandate that courts only

16 consider FTC decisions. Regardless, as the district court noted, “our Legislature

17 instructed the courts to use FTC cases in the courts’ interpretation of the state statute.

18 In comparison, the Legislature did not expressly reference the Lanham Act and

19 related cases and has not amended the provision to . . . do so.” To the extent

20 Defendants argue Section 57-12-4’s use of “and the federal courts” should be read

9 1 to include all federal court decisions, including cases interpreting the Lanham Act,

2 such a result would produce a direction so broad as to be practically meaningless.

3 See Santa Fe Cnty. Bd. of Cnty. Comm’rs v. Town of Edgewood, 2004-NMCA-111,

4 ¶ 7, 136 N.M. 301, 97 P.3d 633 (“[W]e do not interpret a statute to render statutory

5 language meaningless.”). Had our Legislature desired that our courts be guided by

6 Lanham Act precedent, it could have included such language in the statute. See

7 Chatterjee v. King, 2011-NMCA-012, ¶ 15, 149 N.M. 625, 253 P.3d 915 (noting that

8 “the Legislature knows how to include language in a statute if it so desires”), rev’d

9 on other grounds, 2012-NMSC-019, ¶ 52, 280 P.3d 283.

10 {18} The language of Section 57-12-2(D) (2009) 3 supports this interpretation.

11 Defendants’ argument is premised on their view that, under the Lanham Act, so long

12 as the quality associated with the Black & Decker brand is maintained, failing to

13 indicate the ultimate source or manufacturer of the Coffeemaker cannot constitute

14 an unfair or deceptive trade practice under the UPA. Section 57-12-2(D)’s

15 “definition of unfair or deceptive trade practices includes a nonexhaustive list of . . .

16 such acts.” Gandydancer, 2019-NMSC-021, ¶ 11. Among these acts, the Legislature

17 has included conduct based on a product’s quality as well as a product’s source.

18 Compare § 57-12-2(D)(2) (“causing confusion or misunderstanding as to the source,

3 All references to Section 57-12-2 in this opinion are to the 2009 version of the statute.

10 1 sponsorship, approval or certification of goods”), with § 57-12-2(D)(7)

2 (“representing that goods . . . are of a particular standard [or] quality . . . if they are

3 of another”), and § 57-12-2(D)(17) (“failing to deliver the quality . . . of goods . . .

4 contracted for”). The language of these subsections indicates that the Legislature

5 intended that representations as to a product’s source could be a basis for liability

6 under the UPA, independent of that product’s quality.4 See Am. Fed’n of State, Cnty.

7 & Mun. Emps. (AFSCME) v. City of Albuquerque, 2013-NMCA-063, ¶ 5, 304 P.3d

8 443 (“Statutes must . . . be construed so that no part of the statute is rendered

9 surplusage or superfluous.” (internal quotation marks and citation omitted)). Our

10 interpretation is also consistent with our Legislature’s intent that “the UPA . . . serve

11 as remedial legislation for consumer protection” and our precedent “interpret[ing]

12 the provisions of [the UPA] liberally to facilitate and accomplish its purposes and

13 intent.” Gandydancer, 2019-NMSC-021, ¶ 24 (internal quotation marks and citation

14 omitted). We, therefore, conclude that our Legislature did not intend to require

15 courts to apply Lanham Act precedent in deciding UPA claims. Accordingly, the

4 We, therefore, need not look to FTC cases for guidance in this regard. See Richardson Ford Sales, Inc. v. Johnson, 1984-NMCA-007, ¶¶ 12-14, 100 N.M. 779, 676 P.2d 1344 (explaining that, unlike the UPA, the FTC Act does not define “unfair or deceptive” acts, resulting in federal courts supplying a general meaning to the those terms, and that were we to rely on federal decisions as to what constitutes an “unfair or deceptive” trade practice, “we would not be giving effect to the legislative definitions”).

11 1 district court did not err in declining Defendants’ invitation to apply Lanham Act

2 precedent in ruling on the Pumas’ UPA name brand claim.5

3 {19} Having concluded that the district court was not required to apply Lanham

4 Act precedent in ruling on the Pumas’ UPA name brand claim, we cannot say the

5 court’s findings of fact were “based on an erroneous legal theory.” See Hughes,

6 1978-NMSC-002, ¶ 52. Because Defendants have not otherwise developed an

7 argument attacking the district court’s findings of fact on substantial evidence

8 grounds, the court’s findings of fact are binding on appeal. See Martinez v. Sw.

9 Landfills, Inc., 1993-NMCA-020, ¶ 18, 115 N.M. 181, 848 P.2d 1108 (“[A]n

10 appellant is bound by the findings of fact made below unless the appellant properly

5 In support of their contention that the district court erred in failing to apply Lanham Act precedent, Defendants also point to Section 57-12-7, which provides, “Nothing in the [UPA] shall apply to actions or transactions expressly permitted under laws administered by a regulatory body of New Mexico or the United States, but all actions or transactions forbidden by the regulatory body, and about which the regulatory body remains silent, are subject to the [UPA].” But apart from asserting the district court’s refusal to apply Lanham Act precedent would make Section 57- 12-7 superfluous, Defendants do not further develop this argument. We therefore decline to address it. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty to review an argument that is not adequately developed.”); Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed issue, this Court would have to develop the arguments itself, effectively performing the parties’ work for them.”). To the extent Defendants’ argument suggests that the Lanham Act preempts the UPA, we disagree. See JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 919 (7th Cir. 2007) (stating that “the Lanham Act has not been interpreted as a statute with broad preemptive reach”); Attrezzi, LLC v. Maytag Corp., 436 F.3d 32, 41 (1st Cir. 2006) (“It is settled that the Lanham Act does not in general preclude state unfair competition statutes from operating.”).

12 1 attacks the findings, and . . . the appellant remains bound if he or she fails to properly

2 set forth all the evidence bearing upon the findings.”). 6 We turn now to applying the

3 district court’s findings of fact to the UPA.

4 B. The UPA Name Brand Claim

5 {20} Defendants contend that the district court erred in concluding that Defendants’

6 use of the Black & Decker trademark on the Coffeemaker constituted an unfair or

7 deceptive trade practice as defined in Section 57-12-2(D) of the UPA. “When a party

8 is challenging a legal conclusion, the standard for review is whether the law correctly

9 was applied to the facts, viewing them in a manner most favorable to the prevailing

10 party, indulging all reasonable inferences in support of the court’s decision, and

11 disregarding all inferences or evidence to the contrary.” Sheldon v. Hartford Ins.

12 Co., 2008-NMCA-098, ¶ 7, 144 N.M. 562, 189 P.3d 695 (internal quotation marks

13 and citation omitted).

14 {21} “The gravamen of an unfair trade practice is a misleading, false, or deceptive

15 statement made knowingly in connection with the sale of goods or services.”

16 Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 17, 125 N.M. 748, 965

6 To the extent Defendants urge us to adopt their proposed findings of fact related to Black & Decker’s oversight and control of the products Applica sold under Black & Decker’s trademark—which they contend the district court erroneously rejected as legally immaterial—we decline to do so. See Blaze Constr. Co. v. Tax’n & Revenue Dep’t, 1994-NMSC-110, ¶ 24, 118 N.M. 647, 884 P.2d 803 (“It is well established that an appellate court will not find facts on appeal.”).

13 1 P.2d 332. As discussed, Section 57-12-2(D)’s “definition of unfair or deceptive trade

2 practices includes a nonexhaustive list of . . . such acts.” Gandydancer, 2019-

3 NMSC-021, ¶ 11.

4 {22} The district court relied on three of the acts included in Section 57-12-2(D) to

5 conclude that Defendants’ actions constituted an unfair or deceptive trade practice:

6 “representing goods . . . as those of another when the goods . . . are not the goods . . .

7 of another,” § 57-12-2(D)(1); “causing confusion or misunderstanding as to the

8 source, sponsorship, approval or certification of goods,” § 57-12-2(D)(2); and “using

9 exaggeration, innuendo or ambiguity as to a material fact or failing to state a material

10 fact if doing so deceives or tends to deceive.” Section 57-12-2(D)(14).

11 {23} As to the district court’s conclusion under Section 57-12-2(D)(1), Defendants

12 contend the district court’s decision reflects a misapprehension of that subsection.

13 Defendants rely on Thompson v. Youart, 1990-NMCA-012, ¶ 14, 109 N.M. 572, 787

14 P.2d 1255, for the proposition that Section 57-12-2(D)(1) “is the statutory

15 codification of the common law doctrine of ‘palming off’ or ‘passing off,’” and that

16 “[p]alming off is an attempt to make a purchaser believe that a product of a

17 subsequent entrant is that of his better-known competitor.” Defendants point to

18 Thompson’s language that “palming off involve[s] active misrepresentation of the

19 source of the product.” Thompson, 1990-NMCA-012, ¶ 15. Defendants contend

20 palming off does not apply to this situation, in which Black & Decker collaborated

14 1 with and permitted its trademark licensee, Applica, to produce and sell goods using

2 Black & Decker’s trademark under Black & Decker’s supervision and control.

3 Defendants argue the mere presence of Black & Decker’s trademark on the

4 Coffeemaker and its packaging was not deceptive because a trademark does not

5 represent that Black & Decker produced the Coffeemaker. Defendants thus contend

6 they did not actively misrepresent the source of the Coffeemaker because neither the

7 Coffeemaker nor its packaging affirmatively stated that Black & Decker designed,

8 manufactured, distributed, or warranted the Coffeemaker. We are unpersuaded.

9 {24} Thompson is distinguishable in several respects. There, the plaintiff, a

10 furniture designer and manufacturer, sued the owners of a business seeking to enjoin

11 the owners from selling a line of furniture similar to the plaintiff’s. Id. ¶¶ 1-2. The

12 plaintiff alleged violation of common law copyright, unfair trade practices, and

13 unfair competition. Id. ¶ 2. Although this Court discussed the UPA’s applicability to

14 the plaintiff’s common law unfair competition claim and considered the language of

15 Section 57-12-2(D)(1) and (2) in determining whether the business owners had

16 misrepresented the source of the furniture, we ultimately determined the case did not

17 involve a state claim of unfair competition. Thompson, 1990-NMCA-012, ¶¶ 11, 13-

18 17, 22. This Court reasoned that the plaintiff sought protection against copying his

19 furniture designs, and thus concluded that the plaintiff’s claim was preempted by

20 federal copyright law. Id. ¶ 22. The instant case, in contrast, does not involve a claim

15 1 brought by a commercial competitor relating to copyright protections or unfair

2 competition but rather a state UPA claim brought by a consumer relating to deceptive

3 branding. See Gandydancer, 2019-NMSC-021, ¶ 20 (stating that, in removing

4 certain references to “unfair methods of competition” from the UPA, the Legislature

5 demonstrated “an intent to limit the zone of interest protected from unfair trade

6 practices by the UPA to consumers, not competitors”).

7 {25} To the extent Thompson discusses Section 57-12-2(D)(2) of the UPA, one of

8 the sections relied on by the district court in deciding the Pumas’ name brand claim,

9 Thompson is likewise distinguishable. There, this Court noted that, “to prove that a

10 competitor created confusion, [the] plaintiff must show that the public was deceived

11 as to the source of the product” but found “[t]here was no evidence to show that the

12 public was actually deceived as to the source of the furniture.” Thompson, 1990-

13 NMCA-012, ¶¶ 14, 17. Here, by contrast, the district court made findings

14 demonstrating that the Pumas were actually deceived as to the source of the

15 Coffeemaker.

16 {26} Even if we assume that, by virtue of the trademark licensing agreement

17 between Applica and Black & Decker, Defendants’ use of the Black & Decker

18 trademark on the Coffeemaker could not alone constitute active misrepresentation

19 as to the source or manufacturer of the Coffeemaker, Defendants have not

20 adequately addressed the district court’s reliance on Section 57-12-2(D)(14), which

16 1 provides that “using . . . ambiguity as to a material fact or failing to state a material

2 fact if doing so deceives or tends to deceive” can constitute an unfair or deceptive

3 trade practice. In other words, even if we assume Defendants’ use of the Black &

4 Decker trademark by itself did not actively misrepresent the Coffeemaker’s source

5 or manufacturer, Defendants do not address the ambiguity created by Defendants’

6 use of the Black & Decker trademark together with the absence of any disclosure on

7 the Coffeemaker, or in Wal-Mart’s coffeemaker display section, which might

8 indicate to a reasonable consumer either (1) the relationship between Black &

9 Decker and Applica; or (2) that the Coffeemaker was in fact an Applica, rather than

10 Black & Decker, product. See Smoot v. Physicians Life Ins. Co., 2004-NMCA-027,

11 ¶ 15, 135 N.M. 265, 87 P.3d 545 (“The UPA . . . imposes a duty to disclose material

12 facts reasonably necessary to prevent any statements from being misleading.”);

13 Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 40, 142 N.M. 437, 166

14 P.3d 1091 (“[I]t appears that the duty to disclose only arises in relation to some other

15 representation which would otherwise tend to mislead in the absence of the

16 disclosure.” (emphasis omitted)). See generally § 57-12-2(D)(14).

17 {27} Based on the district court’s factual findings in this case, we cannot say the

18 court erred in concluding that Defendants’ knowing and willful use of ambiguity as

19 to a material fact, which tended to deceive a reasonable consumer, constituted an

20 unfair or deceptive trade practice as defined in Section 57-12-2(D)(14). Although

17 1 Black & Decker has at all relevant times continued to produce and sell consumer

2 products with the Black & Decker name and logo, Black & Decker did not design,

3 manufacture, distribute, or warrant the Coffeemaker. The Coffeemaker and the box

4 in which it was packaged, however, misleadingly stated that the Coffeemaker was a

5 Black & Decker product even though it was an Applica product. A consumer reading

6 the information on the box would not know of any relationship between Black &

7 Decker and Applica. The name of the Coffeemaker as stated on the box—“Black &

8 Decker 12 Cup Programmable Coffeemaker”—emphasized that the “Black &

9 Decker” name was an important characteristic of the Coffeemaker; these statements

10 tended to deceive a reasonable consumer, and Defendants knew or should have

11 known that potential purchasers of the Coffeemaker would likely regard information

12 about the Coffeemaker being a Black & Decker product as material. Accordingly,

13 we conclude the district did not err in concluding Defendants’ conduct constituted

14 an unfair or deceptive trade practice under the UPA.

15 {28} We take a moment to emphasize what our decision does not conclude. We do

16 not conclude that the use of a trademark by a licensee pursuant to a trademark

17 licensing agreement by itself constitutes an unfair or deceptive trade practice. Nor

18 do we conclude that evidence regarding the existence of a trademark licensing

19 agreement or the widespread use of these agreements is per se irrelevant in

20 determining whether the use of a trademark constitutes an unfair or deceptive trade

18 1 practice. Finally, we do not conclude that evidence concerning the quality of a

2 product marketed pursuant to a trademark licensing agreement is also per se

3 irrelevant. Rather, our decision is limited to concluding that the district court was

4 not required to apply Lanham Act precedent in ruling on the Pumas’ UPA claim, and

5 that, under the circumstances of this case, Defendants’ knowing and willful use of

6 ambiguity as to material fact, which tended to deceive a reasonable consumer,

7 constituted an unfair or deceptive trade practice.

8 II. The District Court Did Not Err in Denying Damages for Unjust 9 Enrichment

10 {29} In addition to their UPA branding claim, the Pumas brought a claim for unjust

11 enrichment seeking to “disgorge all net benefits” Defendants had earned in

12 connection with the Coffeemaker’s sale. In denying the Pumas and class members

13 damages for unjust enrichment, the district court concluded that the Pumas and the

14 class had not met their burden of proof in establishing the amount of these damages.

15 On cross-appeal, the Pumas contend the district court applied an improper burden,

16 and that, even if the district court applied the proper burden, it was met. In addition,

17 the Pumas argue the district court’s conclusions conflict with its findings of fact. We

18 examine each argument in turn.

19 {30} “Whether the district court correctly allocated the burden of proof is a question

20 of law that this Court reviews de novo.” Strausberg v. Laurel Healthcare Providers,

21 LLC, 2013-NMSC-032, ¶ 25, 304 P.3d 409. The Pumas argue the district court erred

19 1 by applying the “reasonable approximation” standard set forth in Section 51 of the

2 Restatement (Third) of Restitution and Unjust Enrichment (2011) (the Restatement).

3 See id. § 51(5)(d) (“A claimant who seeks disgorgement of profit has the burden of

4 producing evidence permitting at least a reasonable approximation of the amount of

5 the wrongful gain.”). The Pumas contend New Mexico has applied the traditional

6 rule—that a plaintiff’s burden is merely to provide evidence regarding a defendant’s

7 revenues from a tainted transaction while the defendant has the burden of proving

8 any offset. See id. § 51 cmt. i (“A traditional formula . . . states that the claimant has

9 the burden of proving revenues and the defendant has the burden of proving

10 deductions.”).

11 {31} “Disgorgement is an equitable remedy whereby a wrongdoer is forced to give

12 up the benefits obtained as a result of his wrongdoing.” Peters Corp. v. N.M.

13 Banquest Invs. Corp., 2008-NMSC-039, ¶ 32, 144 N.M. 434, 188 P.3d 1185; see

14 also Miller v. Bank of Am., N.A., 2015-NMSC-022, ¶ 23, 352 P.3d 1162

15 (“Disgorgement is not intended to compensate beneficiaries but to prevent unjust

16 enrichment of the trustee and to deter that trustee and others from similar

17 misconduct.”). “[A] disgorgement award must be premised on wrongful conduct that

18 results in a benefit to the defendant and extends only to the amount of gain the

19 defendant derived from the prohibited conduct.” Miller, 2015-NMSC-022, ¶ 25.

20 “The remedy may not be used punitively, and thus a causal connection must exist

20 1 between the breach and the benefit sought to be disgorged.” Peters Corp., 2008-

2 NMSC-039, ¶ 32; see id. (recognizing that “[t]he touchstone of a disgorgement

3 calculation is identifying a causal link between the illegal activity and the profit

4 sought to be disgorged” and that “[t]he court’s power to order disgorgement extends

5 only to the amount by which the defendant profited from his wrongdoing” (omission,

6 internal quotation marks, and citations omitted)).

7 {32} Our Supreme Court has indicated that the party seeking disgorgement has a

8 burden to demonstrate a causal connection between the improper conduct and the

9 benefits obtained. See id. ¶¶ 31, 34-35, 41 (concluding the district court did not abuse

10 its discretion in refusing to order disgorgement where the plaintiff did not show a

11 causal connection between the defendant’s breach of fiduciary duty and the benefits

12 obtained by the defendant). Likewise, the Restatement provides that “a claimant who

13 is prepared to show a causal connection between [the] defendant’s wrongdoing and

14 a measurable increase in the defendant’s net assets will satisfy the burden of proof

15 as ordinarily understood.” Restatement (Third) of Restitution and Unjust

16 Enrichment § 51 cmt. i. This Court has previously looked to the Restatement,

17 together with Peters, in determining whether a plaintiff was entitled to an award of

18 unjust enrichment. See generally Martin v. Comcast Cablevision Corp. of Cal., LLC,

19 2014-NMCA-114, ¶¶ 13-14, 338 P.3d 107. In light of the similarities between our

20 case law and the Restatement, as well as this Court’s previous willingness to look to

21 1 the Restatement for guidance, we conclude the district court did not err in relying on

2 the reasonable approximation rather than the traditional rule. See Restatement

3 (Third) of Restitution and Unjust Enrichment § 51 cmt. i. (rejecting the traditional

4 rule in which “the claimant has the burden of proving revenues and the defendant

5 has the burden of proving deductions” in favor of “a more modern and generally

6 useful rule that the claimant has the burden of producing evidence from which the

7 court may make at least a reasonable approximation of the defendant’s unjust

8 enrichment”); id. (“Disgorgement does not impose a general forfeiture: [a]

9 defendant’s liability in restitution is not the whole of the gain from a tainted

10 transaction, but the amount of the gain that is attributable to the underlying wrong.”).

11 {33} To the extent the Pumas contend New Mexico has consistently applied the

12 traditional rule, the cases they cite address burdens related to mitigating damages,

13 an affirmative defense, rather than disgorgement of unjust gains, and are therefore

14 distinguishable. See McGinnis v. Honeywell, Inc., 1990-NMSC-043, ¶ 22, 110 N.M.

15 1, 791 P.2d 452 (explaining that mitigation of damages “is an affirmative defense

16 which the defendant must plead, and the burden of proof is on [the] defendant to

17 minimize the damages” (internal quotation marks and citation omitted)); Maese v.

18 Garrett, 2014-NMCA-072, ¶ 14, 329 P.3d 713 (stating that “[t]he burden of proving

19 that a tortfeasor’s negligence benefitted the plaintiff is generally the defendant’s”

22 1 and recognizing that proving the value of benefit conferred is considered in

2 mitigation of damages).

3 {34} The Pumas next argue that, even under the reasonable approximation

4 standard, the class met its burden of producing evidence permitting a reasonable

5 approximation of the amount of Applica’s wrongful gain. The Pumas contend that

6 their calculation of Applica’s wrongful gain—based on the $5 per unit revenue

7 Applica made on each Coffeemaker it sold to Wal-Mart 7—constitutes a reasonable

8 approximation. Based on the district court’s factual findings, we disagree.

9 {35} Importantly, the district court expressly rejected the Pumas’ proposed finding

10 that “[a] reasonable inference can be drawn, and is drawn by the [c]ourt as fact

11 finder, that the reason Wal-Mart was willing to pay Applica $5 more than Applica

12 paid for each Coffeemaker . . . was that Applica had the exclusive right to market

13 the Coffeemaker as a Black & Decker product.” See Jones v. Beavers, 1993-NMCA-

14 100, ¶ 18, 116 N.M. 634, 866 P.2d 362 (explaining that “[t]he [district] court’s

15 refusal to adopt the requested findings of fact is tantamount to a finding against [the

16 requesting party] on each of these factual issues”); see also State ex rel. King v. UU

17 Bar Ranch Ltd. P’ship, 2009-NMSC-010, ¶ 44, 145 N.M. 769, 205 P.3d 816 (“When

The $5 amount identified by the Pumas is measured by the difference 7

between the price Wal-Mart paid Applica for each Coffeemaker ($14.75) and the price Applica paid its manufacturer to build, package, and deliver each unit to Applica’s warehouse ($9.75).

23 1 a [district] court rejects proposed findings of facts or conclusions of law, we assume

2 that said facts were not supported by sufficient evidence.”).

3 {36} Additional findings of fact addressing the Pumas’ expert’s calculation of

4 Applica’s wrongful gain based on the entire $5 per unit revenue from the sale of

5 each Coffeemaker to Wal-Mart further undermine the Pumas’ contention that they

6 produced evidence permitting a reasonable approximation of the amount of

7 Applica’s wrongful gain. The Pumas’ expert admitted that a transaction can have

8 just and unjust components. The expert’s unjust enrichment calculation nonetheless

9 failed to “account for the profit associated with [the Coffeemaker’s] features,” and

10 the expert “ha[d] no opinion as to the value of the features that the purchasers of the

11 . . . [C]offeemaker received.” Rather, the expert’s calculation was “based on an

12 assumption that the entirety of the various transactions that resulted in a consumer

13 purchasing [the C]offeemaker from Wal-Mart were unjust.” The Pumas’ expert

14 “made no effort to disaggregate the profit generated from the lawful aspects of the

15 transaction from those aspects of the transaction that [the Pumas] allege are

16 wrongful.” (Emphasis added.) In light of these factual findings, we cannot conclude

17 that the Pumas met their burden of “producing evidence permitting at least a

24 1 reasonable approximation of the amount of the wrongful gain.” See Restatement

2 (Third) of Restitution and Unjust Enrichment § 51(5)(d). 8

3 {37} The Pumas, however, urge us to look to different factual findings that they

4 contend contradict the district court’s conclusion that the Pumas and class failed to

5 meet their burden in establishing the amount Applica and Black & Decker were

6 unjustly enriched. With regard to Applica, the Pumas point out that the district court

7 found that “[c]onsumers are willing to pay a higher price for a name brand

8 coffeemaker, such as the [Coffeemaker], than they would pay for a generic

9 coffeemaker of equal quality.” The Pumas also point to the district court’s findings

10 that Applica sold each Coffeemaker to Wal-Mart for $5 more than it cost to

11 manufacture despite “add[ing] nothing of value to the Coffeemakers other than

12 Applica’s exclusive ability to market the Coffeemakers as a Black & Decker

8 Our conclusion does not foreclose the possibility that an approximation of a defendant’s wrongful gain based on “the whole gain from a tainted transaction” could be reasonable, when, for example, the evidence allows no greater precision. See Restatement (Third) of Restitution and Unjust Enrichment § 51 cmt. i. (stating that a reasonable approximation “will suffice to establish the disgorgement liability of a conscious wrongdoer, when the evidence allows no greater precision, because the conscious wrongdoer bears the risk of uncertainty arising from the wrong”); FTC v. Verity Int’l, Ltd., 443 F.3d 48, 69 (2d Cir. 2006) (“Of course, the reasonableness of an approximation varies with the degree of precision possible.”). In this case, however, the Pumas have not developed an argument on cross-appeal that the evidence allowed no greater precision than a calculation based on Applica’s revenue from each Coffeemaker sold or that they were unable through discovery to gather evidence allowing a more precise approximation of the amount of Applica’s wrongful gain.

25 1 product,” as the Coffeemakers “were already built and packaged when they reached

2 Applica’s place of business in California.” The Pumas argue these findings equate

3 to a finding that Applica was able to add $5 per unit to the purchase price of each

4 Coffeemaker “based entirely” on its ability to market the Coffeemakers as a Black

5 & Decker product. These findings, the Pumas contend, contradict the district court’s

6 conclusion that the Pumas failed to “offer any evidence-based theory for why all ‘per

7 unit profit’ is attributable to the use of the Black & Decker brand.”

8 {38} “We construe findings to uphold, rather than defeat, a judgment.” Jaramillo

9 v. Gonzales, 2002-NMCA-072, ¶ 31, 132 N.M. 459, 50 P.3d 554. The findings

10 discussed above—for example, that the Pumas’ expert admitted that a transaction

11 can have just and unjust components, based his opinions on the assumption that the

12 entirety of the various transactions that resulted in a consumer purchasing the

13 Coffeemaker were unjust, and made “no effort” to disaggregate the profit generated

14 from the lawful aspects of the transaction from those aspects of the transaction that

15 the Pumas allege are wrongful—support the district court’s conclusion. In addition,

16 the Pumas overlook the district court’s finding that the Coffeemaker’s manufacturer

17 “built and packaged the Coffeemaker pursuant to Applica’s specifications”—which

18 indicates that Applica added value apart from the Coffeemaker’s assembly and

19 packaging. (Emphasis added.) But even if we were to conclude that Applica added

20 no value whatsoever to the Coffeemaker—acting strictly as an intermediary

26 1 connecting a product to a retailer—this would not foreclose Applica itself from

2 profiting by selling the Coffeemaker to Wal-Mart at a mark-up. Accordingly, we

3 cannot not say the district court’s findings contradict its conclusion with regard to

4 Applica.

5 {39} As to Black & Decker, the Pumas likewise contend that the district court’s

6 conclusions of law conflict with its findings of fact. The Pumas point to the district

7 court’s findings summarizing the Pumas’ expert’s calculation of Black & Decker’s

8 unjust enrichment—all royalties Black & Decker received from Applica pursuant to

9 the trademark licensing agreement from sales of the Coffeemaker. The Pumas

10 contend that it is necessarily the case that all royalties received by Black & Decker

11 from Applica for the use of the Black & Decker name in selling the Coffeemaker are

12 wrongful, in line with their calculation.

13 {40} As discussed, the district court found that the expert’s opinions were based on

14 the assumption that “the entirety of the various transactions that resulted in a

15 consumer purchasing [the C]offeemaker from Wal-Mart were unjust” and “made no

16 effort to disaggregate the profit generated from the lawful aspects of the transaction

17 from those aspects of the transaction that [the Pumas] allege[d were] wrongful.”

18 Again we reiterate that the Pumas’ own expert conceded that it was possible for a

19 transaction to have a just and unjust component to it. Construing the district court’s

20 findings to uphold rather than defeat its judgment, we cannot say that its findings,

27 1 taken together, contradict its conclusion. See Normand ex rel. Normand v. Ray,

2 1990-NMSC-006, ¶ 35, 109 N.M. 403, 785 P.2d 743 (“Findings of fact are to be

3 liberally construed so as to uphold the judgment of the [district] court.”).9

4 III. Attorney Fees

5 {41} Finally, Defendants argue that, as a matter of law, the Pumas were not entitled

6 to attorney fees incurred for (1) certifying the class, (2) pursuing their 12-cup theory,

7 (3) establishing actual damages, and (4) entries of “block” billing. Defendants

8 further argue that the district court erred in applying the 1.5 multiplier to the Pumas’

9 award.

10 {42} “We review an award of attorney[] fees for abuse of discretion.” Cobb v.

11 Gammon, 2017-NMCA-022, ¶ 60, 389 P.3d 1058; see also Garcia v. Jeantette,

12 2004-NMCA-004, ¶ 15, 134 N.M. 776, 82 P.3d 947 (“The decision whether to grant

13 or deny a request for attorney fees rests within the sound discretion of the district

14 court.”). The district court abuses its discretion when “a ruling is clearly contrary to

15 the logical conclusions demanded by the facts and circumstances of the case.” Sims

16 v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. “[A] discretionary

17 decision based on a misapprehension of the law is an abuse of discretion that must

9 As the class request for attorney fees in connection with this cross-appeal is premised on their entitlement to unjust enrichment damages, we need not reach this issue. See Crutchfield v. N.M. Dep’t of Tax’n & Revenue, 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“A reviewing court generally does not decide academic or moot questions.”).

28 1 be reviewed de novo.” Rio Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-

2 NMCA-091, ¶ 10, 287 P.3d 318 (internal quotation marks and citation omitted).

3 {43} “[I]t has long been the rule in New Mexico that a party is only entitled to those

4 fees resulting from the cause of action for which there is authority to award attorney

5 fees.” Dean v. Brizuela, 2010-NMCA-076, ¶ 16, 148 N.M. 548, 238 P.3d 917. “Our

6 Supreme Court has continued to direct that recoverable fees be segregated from non-

7 recoverable fees to ensure that only those fees for which there is authority to award

8 attorney fees are in fact awarded.” Id. ¶ 17; see also J.R. Hale Contracting Co. v.

9 Union Pac. R.R., 2008-NMCA-037, ¶¶ 92, 95, 143 N.M. 574, 179 P.3d 579 (stating

10 that an award of attorney fees under a statutory claim, which allows an award for

11 attorney fees that is joined with nonstatutory claims, must be limited to the work

12 done on the statutory claim). This Court has recognized that in some cases it may be

13 difficult or impossible to segregate the work performed on different claims because

14 the work is “inextricably intertwined.” J.R. Hale Contracting Co., 2008-NMCA-

15 037, ¶ 95 (internal quotation marks and citation omitted). However, our Supreme

16 Court has emphasized that, notwithstanding that some work may be intertwined, “the

17 [district] court should attempt to distinguish between the two types of work to the

18 extent possible.” Hinkle, Cox, Eaton, Coffield & Hensley v. Cadle Co. of Ohio, Inc.,

19 1993-NMSC-010, ¶ 32, 115 N.M. 152, 848 P.2d 1079.

29 1 {44} Under the UPA, “[t]he court shall award attorney fees and costs to the party

2 complaining of an unfair or deceptive trade practice or unconscionable trade practice

3 if the party prevails.” Section 57-12-10(C). “When a plaintiff asserts a UPA claim

4 along with a number of other distinct claims, the [district] court must separate the

5 claims and determine the amount of time spent on each.” Chavarria v. Fleetwood

6 Retail Corp. of N.M., 2005-NMCA-082, ¶ 43, 137 N.M. 783, 115 P.3d 799 (internal

7 quotation marks and citation omitted), aff’d in part, rev’d in part on other grounds,

8 2006-NMSC-046, ¶ 42, 140 N.M. 478, 143 P.3d 717.

9 {45} The district court used the “lodestar” method to arrive at a determination for

10 attorney fees. To calculate the lodestar value, “the court determines a fee that

11 approximates a reasonable hourly rate multiplied by the number of hours reasonably

12 incurred in the representation.” Atherton v. Gopin, 2012-NMCA-023, ¶ 7, 272 P.3d

13 700. “The lodestar provides an objective basis for valuing the attorney’s services.”

14 Rio Grande Sun, 2012-NMCA-091, ¶ 20 (alteration, internal quotation marks, and

15 citation omitted). “An award based on a lodestar may be increased by a multiplier if

16 the [district] court finds that a greater fee is more reasonable after the court considers

17 the risk factor and the results obtained.” In re N.M. Indirect Purchasers Microsoft

18 Corp., 2007-NMCA-007, ¶ 34, 140 N.M. 879, 149 P.3d 976.

19 {46} As we have addressed above, the Pumas prevailed on only one of their claims,

20 their UPA name brand claim, whereas the class members were not prevailing parties

30 1 and they were not entitled to attorney fees. Notwithstanding their failure to prevail

2 on most of their claims, the Pumas requested a lodestar amount of $1,170,332.50

3 representing the fees billed for the entire case and a 2.0 multiplier. Defendants

4 objected to the hours claimed by the Pumas as the basis for their fees and argued for

5 a significant reduction. After a hearing on the motion, the district court awarded a

6 lodestar that represented a reduction of the amount of hours requested by the Pumas,

7 but not as much as Defendants argued was appropriate. Further, the district court

8 applied a multiplier of 1.5 to the lodestar.

9 {47} Defendants raise a number of objections to the fee award and we address their

10 arguments in turn.

11 A. The District Court’s Award to the Pumas of Attorney Fees Accrued for 12 Certification Was an Abuse of Discretion

13 {48} Defendants’ first argument regarding attorney fees is that, because the class

14 members are not prevailing parties, the Pumas cannot recover fees expended on

15 class-related issues. As we explain, we agree that it was a misapprehension of the

16 law and thus an abuse of discretion to award the Pumas fees for class-related work.

17 {49} Per the UPA, the prevailing party is entitled to reasonable attorney fees. See

18 § 57-12-10(C); Jones v. Gen. Motors Corp., 1998-NMCA-020, ¶ 24, 124 N.M. 606,

19 953 P.2d 1104 (noting that because the plaintiff established that the defendant

20 violated the UPA, he was “entitled to reasonable attorney[] fees and costs in this

21 action”). Defendants’ challenge is to the fees incurred by the Pumas for work related

31 1 to the certification of the class. We note that “an attorney is required . . . to perform

2 all services required in the interest of [their] client and reasonably to be contemplated

3 at the inception of the contract of employment.” In re Brown’s Est., 1944-NMSC-

4 066, ¶ 19, 48 N.M. 580, 154 P.2d 247 (emphasis added). Thus, the question before

5 us is whether the fees incurred for class-related work were reasonably necessary or

6 if they provided actual benefit for the Pumas to prevail in their UPA claim against

7 Defendants. See Calderon v. Navarette, 1990-NMSC-098, ¶ 13, 111 N.M. 1, 800

8 P.2d 1058 (“The district court should award a fee based upon the benefits actually

9 provided to the client.”); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (noting

10 that in assessing a reasonable attorney fee “[c]ounsel for the prevailing party should

11 make a good faith effort to exclude from a fee request hours that are excessive,

12 redundant, or otherwise unnecessary” (emphasis added)). We cannot say that the

13 fees related to certification were reasonably necessary for the Pumas to prevail on

14 their UPA claim given that the class members’ claims ultimately failed.

15 {50} The Pumas’ prevailing cause of action was based on their UPA name brand

16 claim in which they established that Defendants engaged in an unfair trade practice.

17 Though we afford deference to the district court in its determination of attorney fees,

18 the district court provided no explanation of why attorney fees incurred on the basis

19 of certification were reasonable, how they were related to the Pumas’ prevailing

20 claim, or in what way they benefitted the Pumas. We cannot say based on the record

32 1 before us and the arguments and evidence set forth by the parties that certifying the

2 class was necessary for the Pumas to prevail on their cause of action. The evidence

3 and legal services required to prove certification did not affect the Pumas’ ability to

4 prove Defendants violated the UPA based on their name brand theory. “While the

5 fee agreement provided for a reasonable fee for the services to be performed, even a

6 minimal fee becomes excessive when no service is provided.” In re Roberts-Hohl,

7 1994-NMSC-004, ¶ 12, 116 N.M. 700, 866 P.2d 1167.

8 {51} The Pumas argue that the test articulated in O’Neal v. City of Seattle, 66 F.3d

9 1064 (9th Cir. 1995), permits them to recover the fees associated with certification.

10 However, the test set out in O’Neal is based on award of attorney fees for federal

11 civil rights claims. Id. at 1068-69. The test permits a fee award for unsuccessful

12 claims if they are related to successful claims based on the success of the results

13 obtained. Id. Although our courts have followed some federal case law regarding

14 civil rights claims in regard to New Mexico causes of actions, see Gonzales v. N.M.

15 Dep’t of Health, 2000-NMSC-029, ¶ 35, 129 N.M. 586, 11 P.3d 550 (New Mexico

16 Human Rights Act); In re N.M. Indirect Purchasers Microsoft Corp., 2007-NMCA-

17 007, ¶ 28 (class action settlement agreement); Cnty. of Bernalillo v. Sisneros, 1994-

18 NMCA-156, ¶¶ 1, 18, 119 N.M. 98, 888 P.2d 980 (Workers’ Compensation Act),

19 we have not adopted the prevailing-party test used for civil rights claims—wherein

20 fees may be awarded for unsuccessful claims—for claims under the UPA. We

33 1 decline to do so in the face of our case law that determines a party is only entitled to

2 fees for which there is statutory authority, and the statutory authority here awards

3 fees to the prevailing party. See J.R. Hale Contracting Co., 2008-NMCA-037, ¶¶ 92,

4 95; § 57-12-10(C).

5 {52} While we agree with the Pumas that “class determination generally involves

6 considerations that are enmeshed in the factual and legal issues comprising the

7 plaintiff’s cause of action,” Berry v. Fed. Kemper Life Assurance Co., 2004-NMCA-

8 116, ¶ 50, 136 N.M. 454, 99 P.3d 1166 (internal quotation marks and citation

9 omitted), that does not change our analysis. The work can be related but still not

10 benefit the Pumas. See Calderon, 1990-NMSC-098, ¶ 10. Because the Pumas did

11 not benefit from the work related to certification and the work was not reasonably

12 necessary for the Pumas to prevail in their claim, it was an abuse of discretion to

13 award the Pumas attorney fees related to certification. See Harrison v. Bd. of Regents

14 of Univ. of N.M., 2013-NMCA-105, ¶ 14, 311 P.3d 1236 (“[Appellate courts] may

15 characterize as an abuse of discretion a discretionary decision that is premised on a

16 misapprehension of the law.” (internal quotation marks and citation omitted)).

17 B. The Remainder of the District Court’s Decision Regarding Attorney Fees 18 Does Not Constitute an Abuse of Discretion

19 {53} Defendants next request that we examine the district court’s individual fee

20 awards and determine that each award was erroneous because the Pumas are not

34 1 entitled to attorney fees expended on (1) their “12-cup” theory, (2) establishing

2 actual damages, and (3) entries of “block billing.”

3 {54} In addressing Defendants’ arguments, we are guided by the following

4 principles. “The appellate court presumes that the district court is correct, and the

5 burden is on the appellant to clearly demonstrate that the district court erred.”

6 Corona, 2014-NMCA-071, ¶ 26. Further, “‘abuse of discretion’—already one of the

7 most deferential standards of review—takes on special significance when a court is

8 reviewing fee decisions. The district court, which is intimately familiar with the

9 nuances of the case, is in a far better position to make such decisions than is an

10 appellate court, which must work from a cold record.” In re N.M. Indirect

11 Purchasers Microsoft Corp., 2007-NMCA-007, ¶ 14 (alterations, internal quotation

12 marks, and citation omitted). “This court is not inclined to second-guess the [district

13 court] in [its] determination as to the reasonableness of an award of attorney[] fees

14 unless there is a lack of evidentiary basis for the court’s determination or unless the

15 court has been shown to have clearly abused its discretion.” Schall v. Schall, 1982-

16 NMCA-045, ¶ 40, 97 N.M. 665, 642 P.2d 1124. Our duty is to defer to the district

17 court and not disturb an award of attorney fees unless the award is “patently

18 erroneous.” In re N.M. Indirect Purchasers Microsoft Corp., 2007-NMCA-007, ¶ 6.

19 {55} Upon review of the total award, we observe that the district court reduced the

20 award requested by the Pumas significantly. The district court stated that in awarding

35 1 fees, it was not awarding fees that went to the 12-cup claim and could be segregated

2 out, thereby acknowledging the Pumas could not recover attorney fees relating to

3 that claim. The district court also noted that the costs related to the Pumas’ expert

4 witness were essential to the Pumas’ ability to go forward with their case. We can

5 infer that based on this that the district court reasonably assessed Defendants’

6 arguments regarding actual damages. See Sandoval v. Baker Hughes Oilfield

7 Operations, Inc., 2009-NMCA-095, ¶ 65, 146 N.M. 853, 215 P.3d 791 (“Upon a

8 doubtful or deficient record, every presumption is indulged in favor of the

9 correctness and regularity of the [district] court’s decision, and the appellate court

10 will indulge in reasonable presumptions in support of the order entered.” (internal

11 quotation marks and citation omitted)). Defendants have not convinced us that the

12 district court’s reductions failed to consider the issues they have identified. Based

13 on the district court’s explanation of its award and the significant decrease in the

14 award, we conclude that the remainder of the lodestar award for the Pumas’ attorney

15 fees was not an abuse of discretion. See Farmers, Inc. v. Dal Mach. & Fabricating,

16 Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063 (“The presumption upon

17 review favors the correctness of the [district] court’s actions. [The a]ppellant must

18 affirmatively demonstrate its assertion of error.”).

36 1 C. The Multiplier Awarded Was Not an Abuse of Discretion

2 {56} Defendants’ final argument is that the district court’s award of a 1.5 multiplier

3 to the lodestar amount for attorney fees was an abuse of discretion. Defendants argue

4 that the district court abused its discretion in considering the “time value of money”

5 when applying the multiplier.

6 {57} This Court has determined that the use of a multiplier is permitted when

7 awarding attorney fees pursuant to the UPA, and it is within the district court’s

8 discretion to apply such a multiplier. Atherton, 2012-NMCA-023, ¶ 9. “An award

9 based on a lodestar may be increased by a multiplier if the [district] court finds that

10 a greater fee is more reasonable after the court considers the risk factor and the

11 results obtained.” In re N.M. Indirect Purchasers Microsoft Corp., 2007-NMCA-

12 007, ¶ 34. “[T]o the extent that the lodestar rate does not take into account the factors

13 that justify a multiplier, the district court has discretion to apply a multiplier in a

14 UPA case.” Atherton, 2012-NMCA-023, ¶ 11.

15 {58} Defendants cite only Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010),

16 to support the assertion that the district court abused its discretion in applying the

17 multiplier to the lodestar. However, as the Pumas note, Perdue relates to civil rights

18 claims, and we determined in Atherton that we need not be bound by federal fee-

19 shifting cases, including Perdue, when assessing if a multiplier is appropriate.

20 Atherton, 2012-NMCA-023, ¶¶ 10, 11.

37 1 {59} In addressing the multiplier, the district court noted that it considered risk, the

2 policy of providing incentives to attorneys to take cases that enforce a public good,

3 and the success obtained. In part, the district court applied a lower multiplier than

4 the Pumas requested after assessing the relative success of the parties. Based on the

5 evidence presented and the district court’s explanation of its award, we cannot say

6 that applying a 1.5 multiplier was against the “logic and effect of the facts and

7 circumstances before the court.” See In re N.M. Indirect Purchasers Microsoft

8 Corp., 2007-NMCA-007, ¶ 6 (internal quotation marks and citation omitted).

9 CONCLUSION

10 {60} We reverse the district court’s decision to award the Pumas attorney fees

11 related to class certification and remand for recalculation of the attorney fees award

12 without inclusion of those fees, and for calculation of the Pumas’ reasonable attorney

13 fees and costs of this appeal, see Atherton, 2012-NMCA-023, ¶ 16 (providing

14 attorney fees and costs for the prevailing party for a UPA claim on appeal), but

15 otherwise affirm.

16 {61} IT IS SO ORDERED.

17 _________________________________ 18 KRISTINA BOGARDUS, Judge

38 1 WE CONCUR:

2 _________________________________ 3 J. MILES HANISEE, Chief Judge

4 _________________________________ 5 MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation