Cerny et al. v. Costa Verde Corp. et al. (D. Mass. 21-cv-10927).

In June 2021, a lawsuit was filed on behalf of Amanda Cerny and a number of other models, accusing Costa Verde and its owner of false advertising, violation of rights of privacy and publicity, and unfair trade practices in connection with Costa’s use of their likenesses in advertising for Costa’s La Pradera nightclub in Lowell. 

The complaint was served on the defendants in July 2021.  When no answer was filed by mid-September, Judge Burroughs issued an order to show cause as to why they had not responded to the complaint.  When October rolled around and still to answer had been filed, default was entered.  The plaintiffs moved for default judgment, which the defendants failed to oppose.

Judge Burroughs granted default judgment.  She noted that, where a complaint is not answered, all well-pled factual allegations relating to liability are considered true, and determined that the complaint sufficiently established liability.  In considering damages, the court must ensure that damages sought are reasonable and demonstrated by the evidence, and not simply award what the complaint sought.

In this case, the plaintiffs sought $402,000 in actual damages.  They submitted an expert declaration that set forth the compensation that each plaintiff should recover, and asked that the damages be trebled for the knowing and willful violation of 93A.  The calculation was based on both the “day rate” that each model would charge for a photoshoot and a “usage rate” that covered the different ways that their likenesses were used by Costa.  The day rates vary depending on demand for the individual model’s services, their work history, social media following, press coverage and the like.

Judge Burroughs found this calculation to be reasonable and grounded in evidence, and awarded the plaintiffs the full $402,000.  She found the evidence compelled a finding of willfulness, given the allegations (accepted as true) that the defendants had intentionally altered photographs of the plaintiff models to make it appear that they worked at or were otherwise associated with the club.  She accordingly trebled the damages to a total of $1,206,000.  She further entered an injunction prohibiting defendants from using plaintiffs’ images without authorization.  She denied plaintiffs’ motion for attorneys fees without prejudice and invited them to submit documentation of the fees and costs involved in bringing the case.

This case amply demonstrates the danger of ignoring a complaint and failing to obtain legal advice.