Appeals Court Vacates Restitution Order Against Counterfeit DVD Importer

In an unpublished opinion that can’t be cited to argue other cases, the U.S. Court of Appeals for the 11th Circuit rejected on Jan. 24 the amount of restitution a lower court had ordered from an importer of counterfeit DVDs. The Florida Middle U.S. District Court had ordered Dale Borders to pay $365,605.31 to the victims of his counterfeiting scheme. Borders had been on CBP’s radar since around 2006, and was estimated to have brought in over 33,000 counterfeit DVDs, despite several run-ins with the agency. At sentencing in February 2013, the government arrived at its requested restitution amount by estimating the total number of DVDs Borders had allegedly imported based on the weight of several shipments, and multiplying that number by the manufacturer suggested retail price (MSRP). On appeal, the 11th Circuit said the restitution should have instead been based on the number of DVDs that actually entered the marketplace and injured the intellectual property rights holders. Without evidence to that effect, the appeals court vacated the restitution order, but allowed Borders’ 30-month prison term to stand.