author: COLE, Chief Judge.

text:
    Lee Jason KIBLER, dba DJ Logic, Plaintiff-Appellant, v. Robert Bryson HALL, II; Visionary Music Group, Inc.; William Morris Endeavor Entertainment, LLC; Three Oh One Productions, LLC; UMG Recordings, Inc., dba Def Jam Recordings, Defendants-Appellees.
    No. 15-2516
    United States Court of Appeals, Sixth Circuit.
    Argued: September 27, 2016
    Decided and Filed: December 13, 2016

      ARGUED: C. Enrico Schaefer, TRAVERSE LEGAL, PLC, Traverse City, Michigan, for Appellant. David Brafman, AKERMAN LLP, West Palm Beach, Florida, for Hall Appellees. Michael B. Gar-finkel, PERKINS COIE LLP, Los Ange-les, California, for Appellee William Morris Endeavor. Eric J. Shimanoff, COWAN LIEBOWITZ & LATMAN, P.C., New York, New York, for Appellee UMG Recordings. ON BRIEF: C. Enrico Schaefer, Mark G. Clark, TRAVERSE . LEGAL, PLC, Traverse City, Michigán, for Appellant. David Brafinan, AKERMAN LLP, West Palm Beach, Florida, for Hall Appel-lees. Michael B. Garfinkel, PERKINS COIE LLP, Los Angeles, California, for Appellee William Morris Endeavor. Eric J. Shimanoff, COWAN LIEBOWITZ & LATMAN, P.C., New York, New York, for Appellee UMG Recordings.
    Before: COLE, Chief Judge; DAUGHTREY and MOORE, 'Circuit Judges.
   OPINION

COLE, Chief Judge.

Lee Jason Kibler, a disc jockey, brought federal trademark infringement, related state law, and federal trademark dilution claims against Robert Bryson Hall, II, a rapper, and professional entities supporting Hall’s work. The district court granted summary judgment to defendants ■ on all claims. Kibler has appealed that judgment, requiring us to answer two questions. First, has Kibler provided evidence suffí-cient to find that relevant consumers are likely to confuse the sources of his and Hall’s products? Second, has Kibler provided evidence sufficient to find that Hall has diluted Kibler’s mark? We conclude no and thus affirm the grant of summary judgment.

I. BACKGROUND

Kibler uses turntables and others’ vocals to produce music containing jazz and funk elements, among others. He has performed and released several albums under the name “DJ LOGIC” since 1999 though he currently has no record deal. Kibler registered “DJ LOGIC” as a trademark in 2000, allowed the registration to lapse in 2003, and re-registered the name in 2013. He has also been known as just “LOGIC.”

Hall has performed under the name “LOGIC” since 2009. He previously used the names “Young Sinatra” and “Psychological.” Three Oh One Productions is Hall’s personal' company and Visionary Music Group his management company (with Hall, “the Hall defendants”). UMG Recording d/b/a Def Jam Recordings (“Def Jam”) is Hall’s record label and William Morris Endeavor Entertainment (“WME”) his booking agent.

In September 2012, Kibler’s attorney sent Visionary Music Group and WME an email ordering them to stop using the name “LOGIC” and to recall any product or advertisement that did. The attorney maintained that such use infringed on Ki-bler’s mark. The next month, Three Oh One Productions applied to register “LOGIC” as a trademark.

In January 2014, Kibler filed suit against the defendants in the U.S. District Court for the Eastern District of Michigan. He alleged the following claims: 1) trademark infringement in- violation of the Lanham Act, 15 U.S.C. § 1125(a) (2012); 2) breach of the Michigan Consumer Protection Act ("MCPA”), Mich. Comp, Laws § 445.901-.922 (1977); 3) unfair competition under Michigan law; and 4) trademark dilution in violation of the Lanham Act, 15 U.S.C. § 1125(c) (2012).

In March 2014, defendants delayed Hall’s tour and first album release due to ongoing settlement negotiations that ultimately collapsed. Def Jam proceeded to release the album in October of that year. It sold over 170,000 copies.

In May 2015, defendants moved for summary judgment on all of Kibler’s claims. The parties fully briefed the matter and the district court held a hearing. In November 2015, the court granted defendants’ motion in all respects.

II. ANALYSIS

A. Standard of Review

We review a district court’s grant of summary judgment de novo. Med. Mut. of Ohio v. k. Amalia Enters. Inc., 548 F.3d 383, 389 (6th Cir. 2008); Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 280 (6th Cir. 1997) (clarifying that the rule holds in trademark infringement cases). Summary judgment is appropriate when the record shows “no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(c). In other words, we affirm summary judgment when there is no evidence that would allow a reasonable jury to find for the nonmoving party, entitling the moving party to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed. R. Civ. P. 56(c). We view all facts and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Trademark Infringement

Kibler has made no separate arguments for his state law claims, and they rely on the same allegations as his federal trademark infringement claim. For these reasons, we address the state law claims along with the trademark infringement claim.

This court considers whether trademark infringement has occurred using a two-step test. First, we determine whether plaintiffs mark is protectable. Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723, 728 (6th Cir. 2012). Then, we assess whether relevant consumers are likely to confuse the sources of the parties’ products. Id.; Homeowners Grp., Inc. v. Home Mktg. Specialists, Inc., 931 F.2d 1100, 1107 (6th Cir. 1991). The relevant consumers are potential buyers of defendant’s products. Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 419 (6th Cir. 2012). Here, the parties agree Kibler’s mark is protectable. So we , focus on the likelihood that potential buyers of rap would believe Kibler’s music is Hall’s or vice-versa.

In assessing the likelihood of confusion, we take into account the following eight “Frisch” factors: 1) strength of the plaintiffs mark, 2) relatedness of the products, 3) similarity of the marks, 4) evidence of actual confusion, 6) parties’ marketing channels, 6) likely degree of purchaser care, 7) defendant’s intent in selecting the mark, and 8) probability that the product lines will expand. CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793 F.3d 671, 592 (6th Cir. 2015) (citing Frisch’s Rest., Inc. v. Shoney’s Inc., 759 F.2d 1261, 1264 (6th Cir. 1985)).

Plaintiff need not establish' each factor to prevail. Id, Each case is unique, so not all of the factors will be helpful. Homeowners, 931 F.2d at 1107. Further, there is no designated balancing formula for the factors. CFE Racing, 793 F.3d at 592. “The[ir] enumeration is meant ‘merely to indicate the need for weighted evaluation of the pertinent facts in arriving at the legal conclusion of confusion.’ ” Id. (quoting Frisch, 759 F.2d at 1264).

1. Strength of Plaintiffs Mark

The first Frisch factor favors defendants. While Kibler has shown that “DJ LOGIC” is moderately strong conceptually, he has failed to provide evidence of the mark’s commercial strength.

The stronger a mark is, the greater the risk of confusion. Homeowners, 931 F.2d at 1107. A mark cannot be strong unless it is both conceptually and commercially strong. Maker’s Mark, 679 F.3d at 419. And it cannot be conceptually strong unless it is inherently distinctive. Id. Arbitrary marks, which convey something unrelated to' the product they announce, e.g., the “Apple” in “Apple computers,” are distinctive. Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 631 (6th Cir. 2002); see also Maker’s Mark, 679 F.3d at 420 (finding red dripping wax seal announcing bourbon inherently distinctive, and hence conceptually strong). Descriptive marks, which describe the product they announce, are usually indistinctive. See, e.g., Thermo-Scan, 295 F.3d at 632 (finding “Therma-scan,” which describes the services plaintiff performs, indistinc-tive, and hence conceptually weak).

Further, courts presume that an incontestable mark is conceptually strong. Daddy’s, 109 F.3d at 282. A mark is incontestable when it has not been successfully challenged within five years of its registration. Id,; see Dieter v. B & H Indus. of Sw. Fla., Inc,, 880 F.2d 322, 328 (11th Cir. 1989) (explaining that merely descriptive marks cannot be registered as trademarks unless they have acquired a secondary meaning).

In this case, the district court found that “DJ LOGIC” is moderately strong conceptually. The court reasoned that while “DJ” describes Kibler’s craft, “LOGIC” is not even “suggestive of the characteristics of [his] music.” Kibler v. Hall, No. 14-10017, 2015 WL 6865928, at *2 (E.D. Mich. Nov. 9, 2015). Defendants concede this. Kibler contends only that the court erred in not considering the mark’s incontestability. We need not address this argument because we agree with the district court’s assessment, which renders “DJ LOGIC” at least as conceptually strong as a finding of incontestability would.

But a mark can be conceptually strong without being commercially strong, and thus weak under Frisch. Maker’s Mark, 679 F.3d at 419-20, A mark’s commercial strength depends on public recognition, the extent to which people associate the mark with the product it announces. Id. at 419.

Survey evidence is not a prerequisite for establishing public recognition, but it is the most persuasive evidence of it. See, e.g., id. at 421 (characterizing proof of “extensive marketing” and “widespread publicity” around a mark as abundant evidence of public recognition); Frisch, 759 F.2d at 1265 (relying on evidence that around thirty percent of respondents identify non-plaintiff restaurants with plaintiffs mark to conclude mark is commercially weak). Proof of marketing is not a prerequisite either. Therma-Scan, 295 F.3d at 632. But plaintiffs lacking such proof must provide other evidence of “broad public recognition.” Id.

Conversely, proof that third parties have extensively used a trademark or similar trademarks in the relevant market indicates the trademark is commercially weak. Homeowners, 931 F.2d at 1108. The presumption is that the third parties have muddled the mark’s source. In Homeowners, for example, defendant offered evidence that many “real estate related firms” were using trademarks identical or similar to plaintiffs. Id. We found that a reasonable jury could determine that the use had weakened plaintiffs mark because plaintiff sold to real estate brokers and defendant sold to real estate sellers. Id. at 1103, 1108. Compare id. at 1108 with Maker’s Mark, 679 F.3d at 420-21 (denying third-party use of similar marks has weakened plaintiffs mark because it occurred among all distilled spirits rather than the relevant market of tequila).

Here, the district court concluded that “DJ LOGIC” is commercially weak. The court cited Kibler’s lack of survey or marketing evidence and limited commercial success. Kibler, 2015 WL 6865928, at *3 (noting sale of fewer than 300 albums in past three years and fewer than 60,000 albums in past sixteen years; current lack of a recording contract; and inability ever to secure a recording contract with a major label). The court found that third parties have weakened the mark even further by marketing music under nearly ninety variations of “logic.”

Kibler admits he offered no survey evidence, but claims that the district court treated it as a prerequisite. He further argues he provided marketing evidence. First is a sworn declaration that he advertises in print and online, including on MySpace, Twitter, and Facebook. Second are a 2006 Downbeat article featuring him, a 2001 New York Times review mentioning him, and a 1999 Gig article featuring him. Third is a sworn declaration that he has appeared on television shows such as The Tonight Show Starring Jimmy Fallon, The Today Show, and Good Morning America. Kibler also points to his tours and online music sales as proof of marketing. Additionally, Kibler insists he is commercially successful, noting that there is no fixed ■number of album sales establishing com-mereial success. Kibler denies that third parties have weakened his mark.

Defendants reinforce the district court’s findings. Def Jam and WME argue that Kibler’s failure to provide the number of his Facebook “likes” or Twitter followers creates an adverse inference, dismiss.the publications as obscure and out-of-print, and question the number of people who have attended Kibler’s concerts. All of the defendants highlight Kibler’s deposition testimony that he appeared on the television shows to support other, headlining artists.

. The district court properly found that Kibler’s evidence would prevent a reasonable jury from concluding that “DJ LOGIC” is commercially strong. But its analysis was incomplete and at times flawed. The court did not treat survey evidence as a prerequisite for establishing commercial strength. Rather, it also considered whether Kibler had provided marketing evidence. The court erred, however, in finding that he had not. Promotion on platforms such as Twitter and Facebook not only constitutes marketing, but is among the most popular and effective advertising strategies today. And whether publicity like magazine interviews and television appearances constitutes marketing or a separate form of evidence, it speaks to commercial strength. See Maker’s Mark, 679 F.3d at 421.

But some proof is not enough. Kibler must offer evidence that would permit a reasonable jury to determine that wide segments of the public recognize “DJ LOGIC” as an emblem of his music. This means “extensive” marketing and “widespread” publicity around the music and mark. Id. Kibler’s evidence may not create an adverse inference of broad recognition, but it lacks the information jurors would need to find such awarene'ss. For instance, how many and what kind of Twitter followers does Kibler have? A large number of followers, or celebrities likely to re-tweet Kibler’s messages to their large number of followers, for example, would suggest that many types of people know his work and mark. We can say the same of the number and kind of Kibler’s Facebook fans, likes, posts, and re-posts.

Similarly, Kibler fails to provide the circulations or target audiences of Downbeat and Gig, which appear to be niche publications. Further, the New York Times review focuses on two other artists, placing “DJ Logic” in a series of supporting musicians. This leaves a slim chance that readers noticed and recalled Kibler. In any event, both the Gig article and New York Times review are over fifteen years old. Even if they suggested broad recognition, Kibler would have to show continuing awareness of his mark to justify a likelihood of confusion.

Kibler has neither refuted nor explained his deposition testimony that he appeared on television shows to support other, headlining artists. For instance, he testified that Carly Simon, “the main act,” introduced “the guests she had playing with her” on the Fallon show. (Kibler Dep., R. 92-3, PagelD 2930.) We do not know how many guests there were, if Simon introduced them individually, if she said anything other than their names, etc. Kibler did not need to address each of these considerations. But they indicate the sort of information a jury would need to assess the extent to which the public affiliates “DJ LOGIC” with Kibler’s music.

Finally, Kibler’s performances and songs are his products, not advertisements or publicity. Artists may attract consumers directly through their work, as when someone enjoys a musician’s concert enough to then buy the music online. But treating the products that advertisements -are meant to sell as advertisements themselves would mean finding marketing proof in virtually every infringement action, making the consideration superfluous. This is not what Frisch intended. Viewing the evidence in the light most favorable to Kibler, we take his tours and online sales as proof of his commercial success, discussed below.

The district court rightly found that Ki-bler has enjoyed limited commercial success and that this implies that “DJ LOGIC” is not broadly familiar. But the court’s analysis was incomplete. Album sales and even recording contracts are less critical markers of success than before because of widespread internet use. As a result, a plaintiff with low album sales or no representation could nevertheless show commercial success" suggesting broad recognition of his mark using web-based indicators of popularity, e.g., YouTube views. Because Kibler has not done that, we have only his low album sales, current lack of a recording contract, and inability ever to secure a recording contract with a major label. Kibler declares that he has participated “in hundreds of live performances held in at least 46 states,” but he does not indicate the number of people who attended, the number of other artists involved, and whether he ever received top billing. (Kibler Deck, R. 91-1, PagelD 2702.) Kibler’s silence on his popularity online and general statement about his performances do not allow for a finding that “most people will be familiar” with “DJ LOGIC.” Therma-Scan, 296 F.3d at 632.

“DJ LOGIC” lacks commercial strength though we find no proof that third parties have weakened it. Defendants identify the parties’ marks as trademarks in their brief, but do not show they are registered. See AutoZone, Inc. v. Tandy Corp., 373 F.3d 786, 794 (6th Cir. 2004) (involving evidence of 745 trademarks using “ZONE”); Induct-O-Matic Corp. v. Inductotherm Corp., 747 F.2d 358, 362 (6th Cir. 1984) (involving evidence of numerous trademarks using “induct”).

Nor do defendants show that the third parties use the marks in the relevant market. Defendants imply that the market is music sold in the U.S. over Amazon and iTunes. But that is far too broad a market to assume that marks similar or even identical to “DJ LOGIC” weaken it simply by inhabiting the same space. In Maker’s Mark, we denied that all distilled spirits was narrow enough of a field to conclude that similar marks in that industry had weakened the mark of a tequila brand. 679 F.3d at 420-21. We found that tequila itself was the relevant market. Id. Likewise, the relevant market here is not countless types of music or even hip-hop, but DJ music sold in the U.S. over Amazon and iTunes. Because defendants have not shown which, if any of the marks, operate in that market, no reasonable jury could find the marks have weakened “DJ LOGIC.”

Because the record reflects that “DJ LOGIC” is moderately strong conceptually, but weak commercially, the first Frisch factor favors defendants.

2. Relatedness of Products

This court uses the following test to decide whether relatedness favors either party: 1) if the parties’ products compete directly with each other, consumer confusion is likely if the parties’ marks are sufficiently similar; 2) if the products are somewhat related, but do not compete directly, the likelihood of confusion will depend on other factors; 3) if the products are completely unrelated, confusion is unlikely. Daddy’s, 109 F.3d at 282.

Products belonging to the same industry are not necessarily related. Homeowners, 931 F.2d at 1109. To be related, they must be marketed and consumed in ways that lead buyers to believe they come from the same source. Id, Take Therma-Scan, in which we found two ther-mology services unrelated enough that confusion was unlikely. 295 F.3d at 633. We noted that the- parties marketed the services to different populations. Id, Compare id. with Maker’s Mark, 679 F.3d at 423 (concentrating .on other Frisch factors after finding both products high-end distilled spirits, but not directly competitive given their price differential); Little Caesar Enters., Inc. v. Pizza Caesar, Inc., 834 F.2d 568, 571 (6th Cir. 1987) (finding Italian food services related enough to cause confusion because both concentrate on pizza).

The district court found the relatedness factor neutral insofar as the parties’ products are somewhat related, but not directly competitive. The court reasoned that while both Kibler and Hall perform and , sell music, only Hall uses his vocals. Kibler maintains that the factor favors him based on proof that he and Hall both sell hip-hop incorporating turntables and rap. Kibler refers to print and online media about Hall, much of which affiliates him with hip-hop and all of which describes him as a rapper.

The district court correctly found this factor neutral because the record supports that the parties’ products are somewhat related, but not directly competitive. The most relevant evidence is a booking notice describing Hall as a “hot upcoming rapper” and two online ads featuring Hall holding a microphone. (Booking Notice, R. 91-4, PageID 127.) They indicate that while both are musicians and perhaps hip-hop artists, Hall markets himself as a rapper and Kibler a disc jockey. The parties’ products are comparable to the bourbon and tequila goods we found only to belong to the same broad category of high-end distilled spirits in Maker’s Mark, 679 F.3d at 423. Incidental overlap of their customers could not sustain a finding of direct competition at trial. Id. at 421 (affirming district court’s conclusion that products only somewhat related despite district court’s finding that indeterminate number of defendants customers likely patronize plaintiff given drinkers’ habits); see Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 703 F.Supp.2d 671, 692 (W.D. Ky. 2010). Accordingly, the factor is neutral.

•3. Similarity of Marks,

The more similar the marks are, the more likely it is that relevant consumers will confuse their sources. We determine the similarity of marks, by considering whether either mark would confuse a consumer who did not have both marks before her and had only a vague impression of the other mark. Daddy’s, 109 F.3d at 283. We consider the marks’ pronunciation, appearance, and verbaL translation. Id.; see, e.g., Maker’s Mark, 679 F.3d at 421-22 (finding factor favors plaintiff because marks are facially similar and some companies offer several kinds of distilled spirits).

The anti-dissection rule requires us not to dwell on the prominent features of a mark and instead consider it as a whole. Little Caesar, 834 F.2d at 571-72; see, e.g., Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 423-24 (6th Cir. 1999) (finding distinctions in appearance, syllables, language, and pronunciation prevent “JET” and “AEROB-A-JET” from being confusingly similar despite their common word); Little Caesar, 834 F.2d at 572 (finding differences in sound, appearance, and syllables distinguish “Little Caesar” from “Pizza Caesar USA” despite the prominent word they share).

The district court concluded this factor favors defendants based on the anti-dissection rule. The • court. acknowledged that both marks include the prominent word “logic.” Then it noted that the “ ‘DJ’ portion not only changes the look and sound of the mark but also describes or suggests certain characteristics of [Kibler’s] music.” Kibler, 2015 WL 6865928, at *3. Kibler claims that the district court misapplied the anti-dissection rule in two ways. First, it overvalued “DJ,” which is merely descriptive. Second, it neglected to compare just “LOGIC,” which Kibler has also gone by, to Hall’s “LOGIC.” Kibler argues that both approaches conflict with Daddy’s. Defendants accept the district court’s findings.

The district court properly found this factor favors defendants by correctly applying the anti-dissection rule. This meant examining “DJ LOGIC” as a whole, including its appearance, sound, language, and impression. Kibler’s call for this court to “focus on the dominant features of each mark and disregard the non-dominant features” is precisely what the anti-dissection rule forbids. Kibler Opening Br. 19. Further, the “DJ” in “DJ Logic” is more distinctive than the “Family Music Store” in “Big Daddy’s Family Music Store,” which did raise an issue of fact as to whether “Daddy’s” was sufficiently similar. Daddy’s, 109 F.3d at 284.

The district court also correctly declined to compare Kibler’s “LOGIC” to Hall’s “LOGIC.” Kibler’s reliance on Daddy’s is again misplaced. There, we faulted the district court for not comparing just the “Daddy’s” in “Daddy’s Junky Music Stores” with defendant’s mark because “Daddy’s” itself was a separate trademark. Id. at 278, 284. Here the parties agree that Kibler has not registered “LOGIC” alone as a trademark. Thus, the anti-dissection rule requires the similarity of marks factor to favor defendants here.

k- Evidence of Actual Confusion

Evidence of actual confusion is the strongest proof of likely confusion, Frisch, 759 F.2d at 1267. So any such evidence favors the non-movant. Therma-Scan, 295 F.3d at 635. But the weight we give that evidence depends on the amount and type of confusion. Id. at 634. On one end of the spectrum are persistent mistakes and confusion by actual customers. Homeowners, 931 F.2d at 1110. On the other are relatively few instances of confusion and inquiries rather than purchases. The analysis is, above all, contextual.

In Thermcir-Sean, for example, the court found that six email inquiries implying that plaintiff manufactured the defendant’s products provided only weak support for the conclusion that relevant consumers were likely to confuse the two. 295 F.3d at 635-36. The court considered the number of emails against the scale of defendant’s operations. Id. (noting defendants sold 3,200,000 products and received 11,000 calls per month around the time of the emails). Further, it found that the evidence implied carelessness rather than confusion. Id. at 636 (noting that a mistaken internet search could easily yield the wrong email address).

Kibler offers evidence of at most ten instances of actual confusion. These include tweets and webpages advertising a performance by “DJ Logic,” but meaning Hall; an email offering to book “DJ Logic,” but meaning Hall; and inquiries about whether Kibler would be performing somewhere advertising “logic” and referring to Hall.

The district court concluded that the evidence of actual confusion favors Kibler only slightly. The court suggested that the ten instances paled in comparison to Hall’s 170,000 album sales and popularity on YouTube, Facebook, and Twitter. The court also indicated that computer rather than human error caused the confusion on the webpages. Kibler argues that the court neglected to consider the evidence in the light most favorable to him. The Hall defendants claim that the district court erred in finding that this factor favors Kibler at all. They add that the record shows no mistaken purchases.

Because past confusion is the best proof of future confusion, any evidence at all favors the. plaintiff. Kibler has offered some proof, but it is scant. If “LOGIC” really threatened to confuse consumers about the distinctions between Hall and Kibler, one would see much more than ten incidents throughout 170,000 album sales, 1.7 million album downloads, and 58 million YouTube views. The fact that none of the incidents were purchases would further prevent a jury from finding that this factor significantly helps Kibler. Homeowners, 931 F.2d at 1110.

In sum, Kibler has not presented the quantity or type of proof that would tilt the actual confusion factor substantially in his favor.

5. Marketing Channels

The marketing channels factor requires us to compare both how the parties market their products and their main customers. Homeowners, 931 F.2d at 1110. The more channels and buyers overlap, the greater the likelihood that relevant consumers will confuse the sources of the parties’ products. The reverse is true too. In Homeowners, for instance, the court found little overlap where one party marketed to real estate brokers through telemarketing, brochures, and conventions, and the other marketed to real estate owners through newspaper and direct ads. Id. at 1111. That is, the methods used and consumers targeted lessened the chance that a buyer would encounter both products, let alone confuse their sources. See id. at 1110—11.

Today, most parties advertise online. Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1151 (9th Cir. 2011) (finding shared use alone of a ubiquitous marketing channel like the internet does not clarify the likelihood of confusion). We consider the following in deciding whether certain online marketing could support a finding of likely confusion. First, do the parties use the internet as a substantial marketing channel? Therma-Scan, 295 F.3d at 637 (citing Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1151 (9th Cir. 2002)). Second, are the parties’ marks used with web-based products? Id. See, e.g., Brookfield Commc’n., Inc. v. W. Coast Entm’t. Corp., 174, F.3d 1036, 1042, 1057 (9th Cir. 1999) (identifying “MovieBuff,” which denoted software, and “moviebuff.com,” which denoted a website, as marks used with web-based products). Third, do the parties’ marketing channels overlap in any other way? Therma-Scan, 295 F.3d at 637. Only one case has conducted this analysis and there it was straightforward: the plaintiff did not produce web-based products or market them online. Id.

Here, the district court found the marketing channels factor favors neither party because both Kibler and Hall failed to produce any evidence on it. The court rejected Kibler’s promotion on social media and proof of online sales because it “does not support an affirmative answer to any of [the],three questions.” Kibler, 2015 WL 6865928, at *4.

Kibler maintains that he has offered proof that would allow a reasonable jury to find the factor favorable to him. This includes deposition testimony 1) that he advertises on a personal website, MySpace, Twitter, and Facebook; 2) that he sells his music on Amazon and iTunes; and 3) that the parties have played fifteen of the same venues. It also includes tweets promoting Hall’s album and performances and screenshots of Hall’s Facebook page. Ki-bler counts his press clippings, use of a booking agent, and sheer length of his career as supporting evidence too.

Defendants reinforce the district court’s findings, highlighting Kibler’s deposition testimony that thousands of artists have played two of the fifteen venues and noting that Hall has never appeared in Downbeat or Gig. WME urges us to discount the parties’ online advertising, reasoning that such a pervasive channel as the internet cannot clarify the likelihood of confusion.

The district court correctly concluded that this factor is neutral, but underestimated the impact of widespread internet use' on the Thermctr-Scan framework. Ki-bler has shown that the parties market their products on the same websites, Twitter and Facebook, and target the same customers, users of Amazon or iTunes. At first glance, this overlap is compelling. But we must assess-the likelihood of confusion in the real-life -circumstances of the market. Under that rubric, most musical artists use those websites to advertise and sell their products today. As a result, most plaintiffs belonging to that group will meet parts one and two of the Therma-Scan test. At the sanie time, the popularity of these channels makes it that much less likely that consumers will confuse the sources of the parties’ products. There are just too many other contenders. For these reasons, shared'use of the above websites does not help us determine the likelihood of confusion.

Though evidence of the parties’ common venues comes closest, it would not permit a reasonable jury to find that Kibler’s and Hall’s customers substantially overlap. Ki-bler himself admitted that thousands of artists have played two of the fifteen venues. The more artists there are, the fewer the chances of any one attendee encountering both Kibler’s and Hall’s songs, let alone confusing their sources. Proof of the remaining venues carries minimal weight without information about their traditional line-ups or patrons, for example.

Kibler’s press clippings, moreover, are not probative at all. He has not shown that any of the same publications have featured Hall. Further, shared use of the' press cannot support a finding of significantly overlapping marketing channels. The vast majority of artists seek publicity and the medium itself has infinite variations, with everything from amateur zines to well-established newspapers. Similarly, mere use of a booking agent and the length of Kibler’s career do not tell us anything about how he has advertised or whom he has targeted.

The marketing channels factor is neutral because there is minimal evidence that the parties’ advertising methods or targeted customers substantially overlap beyond shared use of congested websites like Fa-cebook and iTunes.

6. Likely Degree of Purchaser Care

When consumers are more likely to exercise caution in purchasing items, they are less likely to confuse their origins. Champions, 78 F.3d at 1120. This happens when consumers have expertise in the items and when the items are particularly expensive. Id.; see, e.g., Homeowners, 931 F.2d at 1111 (finding factor weighs against likelihood of confusion where plaintiffs customers, real estate brokers, are savvy commercial buyers, and defendant’s customers, people seeking to sell their home, are engaging in one of the most consequential transactions of their lives).

In this case, the district court found this factor unhelpful because the degree of care exercised by music consumers varies greatly by consumer and transaction. The court compared buying a song on iTunes to purchasing, an expensive concert ticket, and a “turntabling aficionado” to a “casual fan of. rap.” Kibler, 2015 WL 6865928, at *4.

Kibler does not address this factor and the Hall defendants agree with the district court. Def Jam and WME, on the other hand, argue that the factor favors the defendants. They reason that “fans of each artist know their music” and tend to exercise substantial care in buying recordings. Def Jam Br. 27 (emphasis added); WME Br. 2 n.l (incorporating the other defendants’ arguments). .

The district court was right to disregard this factor, Def Jam and WME artificially narrow the pool of consumers of Hall’s music. These consumers range from people seeking a variety of recordings for use in their cars to fans following Hall on tour. Thus, the district court’s analysis was sound and the factor is insignificant here. See Homeowners, 931 F.2d at 1107 (“not all of the[] factors may be particularly helpful in any given case”).

7. Intent in Selecting the Mark

This court may infer a likelihood of confusion from evidence that defendant chose its mark to confuse consumers about the source of the parties’ products. Therma-Scan, 295 F.3d at 638. The standard assumes that defendant itself believed that using the mark would divert business from plaintiff. Daddy’s, 109 F.3d at 286. Circumstantial evidence of intent is sufficient when direct evidence is unavailable (as it often is). Therma-Scan, 295 F.3d at 638-39. And evidence that defendant knew of plaintiffs trademark while using its mark constitutes such circumstantial evidence. Daddy’s, 109 F.3d at 286-87. In Champions, the court treated testimony that defendant learned of plaintiffs trademark before using it as slight evidence that could support a finding of intent at trial. 78 F.3d at 1121. The testimony trumped the defendant’s identification of independent reasons for choos-tag the mark, including the “championship” caliber of a local basketball team and horses. Id. Conversely, a lack of intent has no effect on the determination of likelihood of confusion.

Having found no evidence of intent, the district court concluded that the factor is neutral in this case. See Daddy’s, 109 F.3d at 287. On appeal, Kibler asserts that two pieces of evidence create a triable issue here. One is his sworn declaration that a Google or YouTube search for “logic music” or “logic musician” yielded “DJ LOGIC” and Kibler’s picture or music before Hall adopted “LOGIC.” The other is Hall’s deposition testimony that he ran Google, Facebook, and Twitter searches for “any other rappers” using “LOGIC” before adopting it. (Hall Dep., R. 92-2, PagelD 2878.) Hall testified that he ran the search “[t]o see if [any rapper] with this name was already at a level where it wouldn’t make sense for two people to coexist with the same name.” (Hall Dep., R. 92-2, Pa-geID 2879.) Def Jam and WME argue that Kibler must show that defendants intended to “usurp [his] goodwill.” Def Jam Br. 22; WME Br. 2 n.1 (incorporating the other defendants’ arguments).

The district court properly found the factor neutral because the record prevents a reasonable jury from inferring intent. As an initial matter, Def Jam and WME cite the wrong legal standard. Evidence that defendants knew of “DJ LOGIC” while using “LOGIC” would be sufficient circumstantial proof of intent. Daddy’s, 109 F.3d at 286, Def Jam and WME’s reliance oh a non-binding and distinguishable case is puzzling given the clear and applicable law. See Chrysler Grp. LLC v. Moda Grp. LLC, 796 F.Supp.2d 866, 871 (E.D. Mich. 2011) (“In this case, Plaintiffs mark has not been deemed protectable. Therefore, it would be unreasonable to infer intent here.”),

Here, we have no proof that Hall searched for “logic music” or “logic musician,” no reason to believe he had to, and thus no evidence he knew of “DJ LOGIC” before adopting “LOGIC.” Hall’s testimony shows, to the contrary, that he avoided choosing a mark that might lead consumers to confuse his product with that of another musician. The factor is therefore neutral.

8, Likelihood of Expansion

A strong possibility that either party will expand its business to compete with the other’s increases the likelihood of consumers confusing the sources of the parties’ products. Daddy’s, 109 F.3d at 287-88 (finding evidence of preliminary negotiations by plaintiff to buy stores in state where defendant operates could support a finding of likelihood of confusion). As with intent, a finding that neither party will expand its business is irrelevant in determining the likelihood of confusion. Champions, 78 F.3d at 1122.

The district court concluded that this factor is neutral' after finding it “unlikely that the parties will expand their markets to put them in competition.” Kibler, 2015 WL 6865928, at *4. Kibler identifies book excerpts, press clippings, and deposition testimony describing his experimentation with different musical genres as proof he will expand his reach. He adds there is “no evidence, that [Hall] will not continue to expand his musical reach as well.” Kibler Opening Br. .26 (emphasis added). Kibler stresses that the parties’ mutual use of hip-hop predisposes them to expansion.

The district court rightly concluded that this factor is neutral. But the basis on which it inferred that expansion was affirmatively unlikely is unclear. All we can conclude is that Kibler offered no proof that the parties will expand their businesses. Kibler’s supposed evidence says nothing of the potential for competition with Hall, whether Kibler anticipates rapping or working closely with a rapper, for example. Further, Kibler inverts the burden of proof under the factor, which requires plaintiff to present evidence of expansion, not the other way around. With no sign of any future overlap in the market, the parties’ mutual use of hip-hop is irrelevant. Thus, the factor is neutral.

9. Balance of Factors

Def Jam and WME claim that Kibler has waived “any challenge” to “the district court’s ultimate balancing of 'the Frisch factors.” Def Jam Br. 16 n.1; WME Br. 2 n.l (incorporating the other defendants’ arguments). We disagree. As part of de novo review, we have a duty to consider and weigh the relevant facts in light of the Frisch factors, which Kibler has amply addressed. CFE Racing, 793 F.3d at 592. Surely, Def Jam and WME would not have us consider all of their evidence and contentions only to cede the ultimate determination to the district court.

We note then that evidence of actual confusion favors Kibler only marginally and both the strength of plaintiffs mark and similarity of the marks favor defendants. Though the Frisch inquiry is flexible and contextual, these are the “most important factors.” Maker’s Mark, 679 F.3d at 424. Further, the remaining factors are, either neutral or insignificant here. Because no-- reasonable jury could find a likelihood of confusion based solely on a few instances of actual confusion, defendants are entitled to judgment as a matter of law on Kibler’s federal trademark infringement and related state law claims.

C. Trademark Dilution

Kibler also alleges trademark dilution in violation of the Lanham Act, 15 U.S.C. § 1125(c). The Act entitles “the owner of a famous mark that is distinctive” to an injunction against someone who “commences use of a mark ... in commerce that is likely to cause dilution ... of the famous mark” “any time after the owner’s mark has'become famous.” § 1125(c)(1).

The Act specifies that a mark is famous when it is “widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.” § 1125(c)(2)(A). In evaluating whether a mark is sufficiently recognized, courts may consider the duration, extent, and reach of advertising and publicity around the mark; amount, volume, and extent of product sales; and actual recognition of the mark. Id.

Courts have interpreted the Act to require the mark to be a “household name.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1373 (Fed. Cir. 2012). That is, “when the general public encounters the mark in almost any context, it associates the term, at least initially, with the mark’s owner.” Id. (internal quotation marks omitted). See, e.g., Audi AG v. D'Amato, 469 F.3d 534, 547 (6th Cir. 2006) (finding “AUDI” marks famous under Lanham Act because Audi had spent millions of dollars on them and they are known globally); see also Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F.3d 97, 105 (2d Cir. 2009) (noting that parties agree that “Starbucks” marks are famous under the Lanham Act); Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 257, 265 (4th Cir. 2007) (noting that parties agree that “LOUIS VUITTON” marks are famous under the Lanham Act). It is difficult to establish fame under the Act sufficient to show trademark dilution. Coach, 668 F.3d at 1373.

The district court concluded that summary judgment was appropriate because no reasonable jury could find “DJ LOGIC” is famous under the Lanham Act. The court cited its finding that Kibler failed to show the mark is commercially strong for trademark infringement purposes. Indeed, it is easier to show public recognition under Frisch than it is under the Lanham Act. Id. (“While fame for dilution is an either/or proposition ... fame for likelihood of confusion is a matter of degree”) (internal quotation marks omitted).

Kibler contends that the district court erred in discounting proof of his fame. Kibler cites his sworn declaration describing his experience in the music industry and his deposition testimony that he was a guest contributor on a Grammy-winning album.

Kibler’s evidence clearly falls short of the high threshold for fame under the Lanham Act. “DJ LOGIC” is simply in a different league from the marks that have met this threshold. Indeed, having failed to show that his mark is commercially strong for even trademark infringement purposes, Kibler cannot point to a triable issue here. Thus, we do not address Kibler’s remaining arguments on his trade dilution claim.

III. CONCLUSION

Kibler has not provided evidence that would allow a reasonable jury to find relevant consumers are likely to confuse the sources of his and Hall’s products, or that Hall’s mark has diluted his. For these reasons, we affirm the grant of summary judgment to defendants on Kibler’s federal trademark infringement, related state law, and federal trademark dilution claims.

        , Kibler asserts for the first time on reply that Hall’s homage to Sinatra suggests he will begin producing jazz, Kibler has waived this argument. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) ("we have found issues to be waived when they are raised for the first time in ... replies to responses”).


source: Caselaw Access Project

author: BOGGS, Circuit Judge.

license: Public Domain

text:
    William WHITLOCK; David Skyrm; Kristin Moore; Holly Goodman; Gary Muncy; Michael Brown, Plaintiffs-Appellees, v. FSL MANAGEMENT, LLC; Entertainment Concepts Investors. Services, LLC; Cordish Operating Ventures, LLC; Entertainment Consulting Services, LLC; FSH Management, LLC, Defendants-Appellants.
    No. 16-5086
    United States Court of Appeals, Sixth Circuit.
    Argued: October 20, 2016
    Decided and Filed: December 14, 2016

      ARGUED: Clark C. Johnson, STITES & HARBISON PLLC, Louisville, Kentucky, for Appellants. Michele D. Henry, CRAIG HENRY PLC, Louisville, Kentucky, for Appellees. ON BRIEF: Clark C. Johnson, Chadwick A. McTighe, Jeffrey S. Moad, STITES & HARBISON PLLC, Louisville, Kentucky, for Appellants. Michele D. Henry, CRAIG HENRY PLC, Louisville, Kentucky, for Appellees.
    Before: GUY, BOGGS, and GRIFFIN, Circuit Judges.
   OPINION

BOGGS, Circuit Judge.

This appeal arises out of a class certification and a court-approved class-action settlement. The defendants-appellants, who were parties to the settlement, challenge both of these determinations, arguing that because the underlying Kentucky state-law cause of action does not support class relief, the district court was required to reject the settlement and decertify the class. Whatever the substance of Kentucky state law, a point which this court need not decide here, we hold that it does not affect the ability of the district court to enforce-a binding settlement agreement. For this reason, we affirm the decision of the district court and uphold the disputed settlement agreement.

I

A

In 2010, plaintiffs William Whitlock, David Skyrm, James Middleton, and Kristin Moore brought suit in Kentucky state court against the defendants, FSL Management, LLC, Entertainment Concepts Investors, LLC, and Cordish Operating Ventures, LLC. The plaintiffs were former employees of various establishments that operate in “Fourth Street Live,” an entertainment district located in downtown Louisville, KY that was managed by the defendants. The plaintiffs individually alleged violations of the Kentucky Wage and Hour Act, KRS § 337.385, against the defendants for their policies. regarding off-the-clock work and mandatory tip-pooling. Citing proper diversity jurisdiction, defendants removed the action to federal court, whereupon the plaintiffs amended their complaint to include an additional defendant and to seek relief as a class. The court granted leave for the plaintiffs to amend their complaint, and the litigation proceeded as a class-action suit.

In 2012, the district court granted class certification to the plaintiffs, finding that they had both met the requirements of Rule 23(a) and fell within one of the enumerated subcategories of Rule 23(b). The defendants successfully stayed the class-action litigation while they pursued interlocutory review in this court, but their petition for review was denied. In re FSL Mgmt., LLC, No. 12-0509 (6th Cir. Jan 31, 2013). In April 2013, the defendants filed a motion in the district court to reconsider its prior order certifying the class. Specifically, the defendants argued that the Supreme Court’s decision in Comcast Corp. v. Behrend, — U.S. —-, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013), coupled with its decision to vacate two related class-certification orders, see In re Whirlpool Corp. Front-Loading Washer Products Liability Lit., 678 F.3d 409 (6th Cir. 2012), vacated and remanded, — U.S. -, 133 S.Ct. 1722, 185 L.Ed.2d 782 (2013); Ross v. RBS Citizens, N.A., 667 F.3d 900 (7th Cir. 2012), vacated and remanded, — U.S. -, 133 S.Ct. 1722, 185 L.Ed.2d 782 (2013), supported reconsideration of the plaintiffs’ class certification. The district court denied the motion to reconsider class certification, and the parties subsequently began settlement discussions.

In May 2014, the -parties reached an agreement as to the financial component of the settlement. It would take them almost another year, however, until the parties could reach an agreement regarding the settlement’s, non-monetary terms. Emails between the parties suggest a final agreement was reached as to all of the settlement’s terras sometime around March 19 and March 20, 2015. On March 20, 2015, the parties filed a joint status report with the district court declaring that they had “agreed to the terms of a settlement agreement and anticipate filing the formal settlement documents ... by April 17, 2015.”

Soon after this joint status report had been filed with the court, the defendants became aware of a February 27, 2015 decision by the Kentucky Court of Appeals, McCann v. Sullivan University Systems, Inc., No. 2014-CA-000392-ME, 2015 Ky. App. Unpub. LEXIS 862 (Ky. App. Feb. 27, 2015). McCann held that KRS § 337,385, the same provision under which the plaintiffs had brought suit. in this case, could not support class-action claims. Id. at *9. On March 26, 2015, the plaintiffs in McCann filed a motion for discretionary review with the Kentucky Supreme Court. McCann v. Sullivan Univ. Sys. Inc., 2015-SC-000144. Buoyed by this discovery, the defendants filed a motion with the district court on April 15, 2015, seeking to stay approval of the settlement agreement in light of McCann. When the court denied this motion and granted preliminary approval of the settlement, the defendants again brought an appeal to this court. In an order dated October 27, 2015, we denied their second appeal as untimely, reasoning that the defendants had not challenged an appealable class-certification order in accordance with Rule 23(f). In our denial, we made it clear that while their appeal was untimely, the defendants remained free to move the district court “to decertify the class on the basis of new developments.” In re FSL Mgmt., LLC, No. 15-0504 (6th Cir. Oct. 27, 2015) (order).

Following our advice, the defendants filed a motion with the district court, pursuant to Fed. R. Civ. P. 23(c)(1)(C), to decertify the class based on the rule and the Kentucky Court of Appeals decision in McCann. The plaintiffs urged the district court to maintain certification and grant final approval to the proposed class settlement. On December 22, 2015, the district court filed a memorandum opinion and order denying the defendants’ motion to decertify the class, and granting final approval of the plaintiffs’ proposed class action settlement. In its opinion, the district court concluded that, regardless of the present meaning of KRS § 337.385, it was bound to maintain class, certification and enforce the settlement agreement as “a binding contract under Kentucky law.” In so doing, the court below rejected the defendants’ two arguments: 1) that both Rule 23 of the Federal Rules of Civil Procedure and the Rules Enabling Act require decertifying the class in light of KRS § 337.385’s prohibition against class-action litigation; and 2) that Rule 23(e) requires the district court to refuse to enforce the class-action settlement in light of the same state statutory prohibition. Defendants raise both in this appeal.

II

As a preliminary issue, we must first decide whether KRS § 337.385 prohibits class-action litigation. Although the district court did not .definitively decide this point, we review the application of state law de novo. Matilla v. South Ken tucky Rural Elec. Co-op. Corp., 240 Fed.Appx. 35, 38 (6th Cir. 2007).

A

When a federal court is required to apply state law, we are required to do so in accordance with the controlling decisions of that state’s highest court. See Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 453-54 (6th Cir. 2001). If the state’s highest court has not yet addressed the issue, “we must predict how that court would rule, by looking to ‘all available data.’” Prestige Cas. Co. v. Michigan Mut. Ins. Co., 99 F.3d 1340, 1348 (6th Cir. 1996) (quoting Kingsley Assoc. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir. 1995)). “Kelevant data include decisions of the state appellate courts, and those decisions should not be disregarded unless we are presented with persuasive data that the [state supreme court] would decide otherwise,” Kingsley Assoc., 65 F.3d at 507.

We are asked to exercise our powers of divination in this case. Neither party contends that the Kentucky Supreme Court has rendered a binding decision on this issue. See Appellants’ Br. at 14; Appellees’ Br. at 19. Rather, both parties recognize that the question will be definitively answered when the Kentucky Supreme Court hands down its decision in McCann v. Sullivan Univ. Sys., No. 2014-CA-000392-ME, 2015 Ky. App. Unpub. LEXIS 862 (Ky. App. Feb. 27, 2015), cert. granted, 2015-SC-000144-DG, 2015 Ky. LEXIS 1970 (Ky. Oct. 21, 2015). Consequently, they each point to a range of cases in order to persuade this court how the Kentucky Supreme Court will rule. Neither party makes a particularly compelling showing.

But we do not need to decide this issue today. Rather than venture into the wilderness of undecided Kentucky state law, a practice which is best left to the capable jurists of the Kentucky Supreme Court, we assume without deciding that the appellants’ view of Kentucky state law is correct. We nonetheless conclude that a post-settlement change in the law does not alter the binding nature of the parties’ settlement agreement, nor does it violate Rule 23 of the Federal Rules of Civil Procedure or the Rules Enabling Act.

Ill

We review a district court’s decision to certify a class for abuse of discretion. See Randleman v. Fidelity Nat. Title Ins. Co., 646 F.3d 347, 351 (6th Cir. 2011). “A district court abuses its discretion “when [it] relies on erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment.’” Beattie v. Century-Tel, Inc., 511 F.3d 554, 560 (6th Cir. 2007) (alteration in original) (quoting Reeb v. Ohio Dep’t of Rehab, and Corr., 435 F.3d 639, 644 (6th Cir. 2006)).

A

The appellants first argue that continued certification of the class was improper under the terms of Rule 23 of the Federal Rules of Civil Procedure. Rule 23 regulates the procedural facets of class-action claims brought in federal court. It establishes strict requirements for class certification, obligating prospective class-action, plaintiffs to satisfy all of the conditions of Rule 23(a) .and,come within one provision of Rule 23(b). See Coleman v. General Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir. 2002). Rule 23(a) lists four “threshold requirements” that are applicable to all class .actions:

(1) numerosity ..(a class so large.that joinder of all members is impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality (named parties’ claims or defenses are typical of the class); and (4) adequacy of representation (representatives will fairly and adequately protect the interests of the class).

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal quotation marks omitted). Rule 23(b) sets forth three types of class-action suits. The only type relevant to this litigation is Rule 23(b)(3), which permits a class to be certified where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). This class-action was certified under both Rule 23(a) and (b)(3).

A district court “retains the ability to monitor the appropriateness of class certification throughout the proceedings and to modify or decertify a class at any time before final judgment.” In re Integra Realty Resources, Inc., 354 F.3d 1246, 1261 (10th Cir. 2004). This includes the duty to decertify the class after a settlement agreement has been reached between the parties, but where the requirements of class certification had not been met. See Amchem Prods., Inc., 521 U.S. at 620-28, 117 S.Ct. 2231 (holding that courts are “bound to enforce” Rule 23’s certification requirements, even where it means decertifying a class after they had reached a settlement agreement and submitted it to the court for approval). The district court chose not to exercise this power, instead concluding that “the fact that the Defendants voluntarily settled this wage and hour class action” permitted it to maintain class certification and enforce the settlement. The appellants 'argue that irrespective of-the settlement ágreement, the prohibition against class-action litigation in KRS § 337.385(2) required the district court to decertify the class, as the Supreme Court had done in Amchem. See Appellants’ Br. at 17.

The appellants fundamentally misread Amchem, however. Although the appellants are right to note that Amchem stands for the principle that the “dominant concern[s] [of Rule 23(a) and (b) ] persistí ] when settlement, rather than trial, is proposed,” Amchem Prods., Inc., 521 U.S. at 619-21, 117 S.Ct. 2231, they fail to recognize the intended beneficiaries of Rule 23’s requirements. Amchem makes clear that the certification provisions of Rule 23 are designed to “focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives.” Id. at 621, 117 S.Ct. 2231 (emphasis added). Unlike in Amchem, where certification of the “sprawling” class was challenged by numerous objectors both in and out of .the plaintiff class, id. at 624, 117 S.Ct. 2231, the challenge to class certification in this case comes from the defendants-appellants. As Rule 23 was never designed to protect the interests of parties who were fairly represented throughout the class-action litigation process, the appellants’ reliance upon Amchem is misplaced.

But of course this puts the cart before the horse, as the appellants have failed to make any argument explaining why the prohibition against class-action litigation in KRS § 337.385(2) disturbs any of the class-certification requirements set forth in Rule 23(a) or (b). In fact, the appellants seem to hope that this court will fill in the gaps on their behalf. They only summarily analogize this case to Amchem, concluding that because certification in that case was improper, “the District Court here should have decertified the class and- refused to approve a settlement because Kentucky substantive law prohibits class actions.” Appellants’ Br. at 17. Appellants’ blanket statement does not survive close.scrutiny. Only two of the four threshold requirements in Rule 23(a), commonality and typicality, even reference substantive law, and neither appear to be impacted by the appellants’ proposed meaning of KRS § 337.385(2). Common sense reveals why this is the case: the purported bar against class-action litigation in KRS § 337.385(2) is a procedural element of the statute. Even if the statute is read, to prohibit class-action suits, it in no way affects the ability of class-plaintiffs to individually bring claims under the statute for .alleged wage and labor violations. So long as the substantive elements of. a cause of action under the statute remain unchanged, the ability of class plaintiffs to satisfy Rule 23(a)’s commonality and typicality requirements will similarly remain unaffected.

This subtle distinction is borne out in the sparse, but informative, case law that the appellants present to this court. Throughout their, brief, the appellants cannot cite a single case that stands for the proposition that a state statutory provision prohibiting class-action suits results in a failure to meet Rule 23(a) or (b) certification requirements. Rather, the cases that the appellants do cite suggest that such a provision is fatal not to Rule 23’s certification requirements, but rather to Rule 23 more generally under the Rules Enabling Act. See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins, Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2.d 311 (2010) (controlling op.) (discussing a conflict between a New York rule prohibiting class-action suits and Rule 23 solely with regards to the Rules Enabling Act); Williams v. King Bee Delivery, LLC, No. 5:15-CV-306-JMH, 199 F.Supp.3d 1175, 2016 WL 4184026, 2016 U.S. Dist. LEXIS 104001 (E.D. Ky. Aug. 8, 2016) (holding that KRS § 337.385(2) prevents class certification under Rule 23 in federal court because of the Rules Enabling Act); Anderson v. GCA Servs. Grp. of N.C., Inc., No. 1:15-CV-37-GNS, 2015 WL 5299452, 2015 U.S. Dist. LEXIS 119742 (W.D. Ky. Sept 9, 2015) (same); Green v. Platinum Rests. Mid-America, LLC, No: 3:14-CV-439-GNS, 2015 U.S. Dist. LEXIS 171647 (W.D. Ky. Feb. 24, 2015) (same); Davenport v. Charter Commc’ns, LLC, 35 F.Supp.3d 1040, 1049-51 (E.D. Mo. 2014) (same).

In sum, though the appellants are right to suggest that Amchem requires a district court to evaluate whether the requirements of class certification have been met even where the parties have reached a settlement agreement, they have failed to show that their proposed meaning of KRS § 337.385(2) operates to prevent the plaintiffs from satisfying Rule 23’s certification requirements. Therefore, to the extent that the district court concluded that continued certification of the class was proper under Rule 23 of the Federal Rules of Civil Procedure, it did not abuse its discretion.

B

The appellants also argue that the Rules Enabling Act required the district court to decertify the class. The Rules Enabling Act provides that court-created procedural rules, such as Rule 23 of the Federal Rules of Civil Procedure, “shall not abridge, enlarge, or modify any substantive right.” 28 U.S.C. § 2072(b). Here, the appellants argue that continued certification of the class under Rule 23 operates to modify the scope of the state substantive right defined in KRS § 337.385(2).

Had the plaintiffs-appellees sought to litigate this case on the merits rather than settle, the appellants might have a strong case. They argue that permitting certification of a class-action suit pursuant to Rule 23 directly conflicts with the statutory prohibition against class-action litigation in KRS § 337.385(2). Further, they argue that because this prohibition “is procedural in the ordinary use of the term but ... so intertwined with a state right or remedy that it functions tó define the scope of the state-created right,” Shady Grove, 559 U.S. at 422, 130 S.Ct. 1431, permitting class certification under Rule 23 would “modify [that] substantive right”: ⅛ violation of the Rules Enabling Act. 28 U.S.C. § 2072(b). In Shady Grove, the Court dealt with a similar conflict between Rule 23 and a New, York rale that prohibited certain class-action suits. In a uniquely splintered opinion, see supra n.2, the Court held that while the Rules Enabling Act was not violated in that case (because the New York rale was merely procedural), it would be violated where the rule was effectively part of the state substantive right. Shady Grove, 559 U.S. at 422, 130 S.Ct. 1431. In making this distinction, Justice Stevens emphasized that the rale in that case “expressly and unambiguously applie[d] not only to claims based on New York law but also to claims based on federal law or the law of any other State.” Id. at 432, 130 S.Ct. 1431. Here, the prohibition on class-action litigation only applies to claims brought under the Kentucky Wage and Hour Act, and it appears within the same statutory provision that creates the private cause of action. KRS § 337.385(2). Thus, as three district courts have concluded, we assume without deciding that the Kentucky statute’s purported prohibition against class-action litigation is substantive for the purposes of the Rules Enabling Act. See Williams, 199 F.Supp.3d at-, 2016 WL 4184026, at *6-7, 2016 U.S. Dist. LEXIS 104001, at *19-22 (holding that KRS § 337.385(2) prevents class certification under Rule 23 in federal court because of the Rules Enabling Act); Green, 2015 U.S. Dist. LEXIS 171647, at *17-23 (same); Davenport, 35 F.Supp.3d at 1049-51 (same).

This does not settle the matter, however. Those cases involved parties that had not yet reached an agreement to settle their claims. Although a district court is duty bound to decertify a class, where necessary, until final judgment, see supra Part III.A, the Rules Enabling Act is not fatal to class certification where, as here, class certification is sought to enforce a settlement agreement. “[T]he proposed settlement could not violate the Rules Enabling Act since a ‘court’s approval of a voluntary settlement, by nature a compromise of rights, does not affect substantive state rights.’ ” Sullivan v. DB Investments, Inc., 667 F.3d 273, 312 (3d Cir. 2011) (quoting In re Prudential Ins. Co. Am. Sales Practices Litig., 962 F.Supp. 450, 561 (D.N.J. 1997), aff'd sub nom. In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283 (3d Cir. 1998)). Rather, “a district court’s certification of a settlement simply recognizes the parties’ deliberate decision to bind themselves according to mutually agreed-upon terms without engaging in any substantive adjudication of the underlying causes of action.” Sullivan, 667 F.3d at 312. As certification of the settlement class does not amount to “a finding that the plaintiffs are actually entitled to relief under substantive state law,” id. at 313, it cannot be the case that certification acts to “abridge, enlarge, or modify any substantive right” created by state law. 28 U.S.C. § 2072(b). Therefore, certification of the settlement class in this case does not implicate the Rules Enabling Act, even where we assume that the appellants’ reading of KRS § 337.385(2) is correct and that it constitutes a substantive provision of the Kentucky statute.

IV

The appellants also argue that, irrespective of the propriety of class certification, the district court erred when it approved the settlement agreement under Rule 23(e) of the Federal Rules of Civil Procedure. Just as with the district court’s decision to maintain class certification, we review a district court’s decision to approve a class-action settlement agreement for abuse of discretion. Vassalle v. Midland Funding LLC, 708 F.3d 747, 754 (6th Cir. 2013).

A

Rule 23(e) establishes additional rules for the settlement, dismissal, or compromise of class claims. It requires that class-action claims “may be settled, voluntarily dismissed, or compromised only with the court’s approval.” Fed. R. Civ. P. 23(e) (emphasis added). Approval is only warranted where the court determines, inter alia, that the proposed class settlement would be “fair, reasonable, and adequate.” Id. Factors that guide this inquiry include:

(1) the risk of fraud or collusion; (2) the complexity, expense and likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent class members; and (7) the public interest.

UAW v. GMC, 497 F.3d 615, 631 (6th Cir. 2007). Courts have also used Rule 23(e) to consider “legitimate concerns about federal-state relations.” Georgevich v. Strauss, 772 F.2d 1078, 1085 (3d Cir. 1985).

The appellants argue that these factors require that the court refuse to enforce, a proposed settlement under Rule 23(e) where, as here, substantive state law prohibits class-actions. Specifically, the appellants argue that approval of the proposed settlement violated Rule 23(e)(2)’s “fairness” requirement because the proposed settlement contravened Kentucky public policy. See Appellants’ Br. at 17-20. To this end, the appellants cite to a range of cases involving consent decrees, which the appellants argue include a “fairness” requirement analogous to the kind in Rule 23(e). In these cases, courts have evaluated the public-interest component of the ' “fairness” inquiry by “considering] whether the decree is ‘consistent with the public objectives sought to be attained by [the legislature].”’ United States v. Lexington-Fayette Urban Cty. Gov’t, 591 F.3d 484, 489 (6th Cir. 2010) (quoting Williams v. Vukovich, 720 F.2d 909, 923 (6th Cir. 1983) (citation omitted)). Thus, where “a change in law eliminates the rights and duties the consent decree is designed to enforce, then it should not be enforced simply because the parties agreed tó it.” Brown v. Tenn. Dep’t of Fin. & Admin., 561 F.3d 542, 546 (6th Cir. 2009) (citation omitted). The appellants argue that the “new” meaning of ICRS § 337.385(2) constitutes a change in law, and that just as with consent decrees, the court has an obligation under Rule 23(e) to refuse to enforce the proposed settlement agreement. .

The appellees argue, and the district court agreed, that nothing in Rule 23(e) prevents the district court from enforcing an agreed-upon settlement against defendants who were properly represented throughout settlement negotiations. The district court primarily relied upon the Third Circuit’s decision in Ehrheart v. Verizon Wireless, 609 F.3d 590 (3d Cir. 2010), a case in which the facts bear a startling resemblance to our present controversy. In Ehrheart, a group of plaintiffs brought suit against Verizon Wireless for alleged violations of the Fair and Accurate Credit Transaction Act (FACTA). Id. at 592. After successfully obtaining class certification, the parties began settlement negotiations that culminated in a proposed settlement agreement that was given preliminary approval by the district court. Ibid. After preliminary approval had been obtained, but before final approval had been given, Congress passed legislation that amended FACTA and eliminated the plaintiffs’ underlying cause of action. Ibid. Verizon swiftly filed a motion to vacate the district court’s preliminary approval of the parties’ proposed settlement, and award judgment to Verizon on the pleadings. Ibid.

While the district court granted both of Verizon’s motions, the Third Circuit reversed. It reasoned that while Rule 23(e) imposed a duty upon the district court to evaluate proposed class-action settlements, “[t]he purpose of Rule 23 is to protect the unnamed members of the class from unjust or unfair settlements,” not the parties to the settlement who were represented by “experienced counsel.” Id. at 592-94. Furthermore, the Third Circuit rejected the notion that its obligation to evaluate the settlement under Rule 23(e) was antecedent to the enforcement of a binding settlement agreement. “The requirement that a district court review and approve a class action settlement before it binds all class members does not affect the binding nature of the parties’ underlying agreement.” Id. at 593 (citing In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008)). In fact, the use of Rule 23(e) in such a way runs afoul of the “particularly muscular” presumption in favor of settlement in class-action litigation. Id. at SOS-OS. Stated more plainly, “the decision to settle a case is a considered one.... We will not relieve a party of that decision because hindsight reveals that its decision was, given later changes in the law, probably wrong.” Id. at 595-96.

We agree with the Third Circuit and hold that Rule 23(e) does not bar a district court from enforcing a class-action settlement agreement after a post-settlement change in substantive law. The appellants’ argument is a false analogy. Consent decrees differ from class-action settlements in numerous respects. To begin with, consent decrees are a prospective form of relief involving continuous court oversight. They are designed to be a flexible remedy, easily modifiable when the facts or law as to the parties change. See United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 76 L.Ed. 999 (1932) (“The consent is to be read as directed towards events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be.”). Settlements, conversely, are designed to conclude litigable disputes. Finality, not modifiability, is the rule, and settlements are commonly treated as contractual agreements between the parties by the courts. See Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 384 (Ky. App. 2002) (“An agreement to settle legal claims is essentially a contract subject to the rules of contract interpretation.”). Moreover, as the Third Circuit recognized, the court-approval mechanism contained in Rule 23(e) is designed to protect absent class members and other non-parties to the litigation, not the defendants who misread the law and agreed to an unfavorable settlement offer. Even if we agreed with the appellants’ consent-decree analogy and found class-action settlements to be modifiable in response to changes in substantive law, it would be perverse to the aims of Rule 23(e) to employ it in such a way as to rescue a litigating party from a bargain poorly struck. For these reasons, we hold that the district court did not abuse its discretion when it enforced the parties’ settlement agreement.

V

The appellants seek to reverse the district court’s order to maintain class certification and enforce the proposed class settlement. They are not entitled to that relief because even if we assume that their proposed interpretation of Kentucky state law is correct, they fail to show that the district court abused its discretion. For this reason, we AFFIRM the decision of the district court to maintain class certification and to approve the parties’ settlement agreement.

      . The district court suggested that the defendants had made a plausible case about the meaning of KRS § 337.385, but chose not to reach the issue. "[H]ad the parties ... not reached a settlement in this matter, the Court would stay the action pending resolution of this issue by the Kentucky Supreme Court, instead of decertifying the class as argued by the Defendants.” Whitlock v. FSL Mgmt., LLC, No. 3:10CV-005 62-JHM, 2015 WL 9413142, at *3 (W.D. Ky. Dec. 22, 2015),

      . This is an unusual case. While Justice Scalia delivered the opinion for a five-justice majority with respect to Parts I (procedural history) and II-A (finding a conflict between Rule 23 and the New York rule), the court splintered on the remaining issues. Justice Scalia wrote a four-justice plurality opinion explaining that Rule 23 always superseded state class-action rules in federal court. Justice Ginsburg wrote a four-justice plurality opinion taking the opposite position. Justice Stevens wrote an opinion concurring in the judgment, but also agreeing with Justice Ginsburg that there are some instances where state procedural rules function as part of the state's definition of substantive rights and remedies and thus must be applied in federal court. As Justice Stevens’s opinion is the narrowest in support of the judgment, it technically controls. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).


author: RONALD LEE GILMAN, Circuit Judge.

text:
    Bobby J. COURSEY, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
    No. 16-5336
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: December 14, 2016

      ON BRIEF: Paul B. Eaglin, OLINSKY LAW GROUP, Syracuse, New York, for Appellant. Brian J. Alesia, SOCIAL SECURITY ADMINISTRATION, Chicago, Illinois, for Appellee.
    , Before: BOGGS, GILMAN, and DONALD, Circuit Judges.
   OPINION

RONALD LEE GILMAN, Circuit Judge.

Following the successful reversal of the Social Security Administration’s denial of his Social Security benefits, Bobby ■ J. Coursey sought attorney fees under the Equal Access-to Justice Act (EAJA), 28 U.S.C. § 2412. Coursey requested an hourly rate of $185.18, which exceeds the EAJA’s presumptive statutory cap of $125 per hour. The district court granted Coursers request in part by allowing the rate of $140 per hour, Coursey appeals, seeking the full requested rate. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

When Coursey’s application for Social Security benefits was denied by the Social Security Administration, he sought judicial review of the Administration’s decision in the district court. The case was resolved when the court granted a joint motion to reverse the Administration’s decision. Judgment in favor of Coursey was entered in September 2015.

Coursey then filed a motion for attorney fees. Although the EAJA, sets the presumptive maximum hourly, rate an attorney may recover at $125, see 28 U.S.C. § 2412(d)(2)(A), Coursey sought $185.18 per hour. Coursey submitted the Bureau of Labor Statistics’ Consumer Price Index (CPI) .for the Midwest, which documents that the EAJA’s statutory cap amount would, when adjusted for the cost of living in the Midwest in 2015, be the equivalent of $185.18.

The Commissioner opposed the motion on the ground that the evidence Coursey produced in support of his motion was insufficient to justify an increased hourly rate. Citing this court’s decision in Bryant v. Commissioner of Social Security, 578 F.3d 443 (6th Cir. 2009), the Commissioner argued that a party must put forward evidence that the requested rate is “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill; experience, and reputation” in order to obtain attorney fees in excess of the EAJA cap. Id. at 450 (quoting Blum v. Stetson, 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Coursey responded by citing to cases outside this circuit and referring to Glenn v. Commissioner of Social Security, 763 F.3d 494, 497 n.3 (6th Cir. 2014), in which this court commented that fees of $171.06 and $173.01 per hour requested by Coursey’s counsel, Howard Olinsky, for work in 2012 and 2013, respectively, were “modest” and “reasonable.” Id. The response included an affidavit by Olinsky that described his qualifications and stated his normal contingent hourly rate in Syracuse, New York.

In March 2016, the district court granted in part Coursey’s motion for attorney fees. The court concluded that the CPI and Glinsky’s affidavit were insufficient to justify the requested hourly rate. Ultimately, however, the court approved an award of $140 per hour, consistent with other recent cases in that district awarding that amount for EAJA attorney-fee requests in Social Security cases. This timely appeal followed.

II. ANALYSIS

A. Standard of review

We review a district court’s award of attorney fees using the abuse-of-discretion standard. Minor v. Comm’r of Soc. Sec., 826 F.3d 878, 882 (6th Cir. 2016). “A district court abuses its discretion when it relies on clearly erroneous findings of fact, when it improperly applies the law, or uses an erroneous legal standard.” Glenn, 763 F.3d at 497 (quoting Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998)).

B. Attorney fees under the EAJA

The EAJA provides, in pertinent part, that

a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States ..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 UiS.C. § 2412(d)(1)(A). “[F]ees and other expenses” are defined by the EAJA to include “reasonable attorney fees.” Id. § 2412(d)(2)(A), The EAJA goes on to provide that

[t]he amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ... attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

Id. This court has held that, “[i]n requesting an increase in the hourly-fee rate, Plaintiffs bear, the burden of producing appropriate evidence to support the requested increase.” Bryant, 578 F.3d at 450.

Coursey argues that the district court abused its discretion by conflating the prevailing market rate and cost-of-living adjustment (COLA) analyses. In particular, Coursey contends in his brief that

[a] plain reading of the statute reveals that the “amount of fees awarded under this subsection” shall be the “prevailing market rate” so long as the “prevailing market rate” does not exceed $125 per hour, in which case the statute caps the rate at $125 per hour. The statute then presents an exception, and that exception has absolutely nothing to do with the “prevailing market rate,” because “the prevailing market rate” has already been established (whether below . or above the statutory cap of $125 per hour).

(Internal citations omitted.)

According to Coursey, the EAJA does not permit a higher attorney’s fee than $125 per'hour, even if the prevailing market rate is higher than $125, unless either the COLA or a special factor justifies a higher fee. He consequently concludes that his submission of the CPI alone should have been sufficient to justify a higher fee because it shows an increase in the cost of living. Coursey refers to decisions from several other circuits to support this reading of the statute and emphasizes the Seventh Circuit’s recent decision in Sprinkle v. Colvin, 777 F.3d 421 (7th Cir. 2015) (holding that the CPI alone is sufficient to establish an increase in the cost of living).

We have no disagreement with Coursey’s interpretation of "the statute. The statute clearly provides that attorney fees under the EAJA must be in line with the prevailing markét rate, but cannot exceed $125 per hour unless either the increased cost of living or a special factor justifies a higher fee. Nonetheless, the district court did not abuse its discretion in awarding a fee above the statutory cap of $125 per hour but below Coursey’s requested fee of $185.18 per hour.

This court requires a plaintiff seeking an: attorney’s fee of greater than $125 per hour to show by competent evidence both that the cost of living justifies a higher rate and, as the statute itself requires, that the fee is “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Bryant, 578 F.3d at 450 (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Accordingly, this court has held that the CPI alone is insufficient to justify an attorney’s fee higher than the $125 per hour statutory cap. Id.; Clark v. Comm’r of Soc. Sec., No. 16-5393, — Fed.Appx. -, 2016 WL 6958640 (6th Cir. Nov. 29, 2016) (unpublished); Sakhawati v. Lynch, 839 F.3d 476, 481 (6th Cir. 2016). The CPI alone is insufficient because, although it addresses the cost-of-living factor to overcome the statutory cap, it does nothing to show whether the prevailing rate in the relevant community is higher than $125 per hour. As the Seventh Circuit has explained:

While the CPI suffices as proof of an increase in the cost of living, claimants must still produce satisfactory evidence that the increase in the cost of living “justifies” the rate requested. So claimants must produce evidence that the rate they request is in line with those prevailing in the community for similar services by lawyers of comparable skill and experience.

Sprinkle, 777 F.3d at 428 (citation omitted);

In this case, Coursey established that the cost of living had, in fact, increased significantly. He did not, however, provide any evidence of what the prevailing market rate in the local community would have been — despite the statute’s express requirement that the amoqnt of fees awarded under the EAJA be “based upon prevailing market rates for the kind and quality of the services furnished.... ” 28 U.S.C. § 2412(d)(2)(A) (emphasis added). The affidavit that Coursey submitted, which addressed only his attorney’s qualifications and normal contingent hourly rate in Syracuse, New York, is insufficient to establish a basis on which the district court could justify the requested rate in Bowling Green, Kentucky. Id.

Contrary to Coursey’s argument that the district court conflated the prevailing market rate and COLA analyses, the court clearly distinguished the two requirements. And it correctly concluded that, to obtain an attorney-fee award in excess of the statutory cap, Coursey needed to submit evidence to support a finding of a change in the cost of living and evidence to support a finding that a fee above the $125-per-hour statutory cap was in line with prevailing rates in the community. Coursey submitted evidence' on the first point, but no evidence on the second. The court accordingly did’not abuse its discretion in denying his requested hourly rate.

Nor did the district court abuse its discretion when it awarded an attorney’s fee based on $140 per hour. The court, giving “Coursey the benefit of the doubt,” properly relied on evidence — in the form of judicial findings in previous cases — that the prevailing market rate for similar services within its venue was $140 per hour. See Neff v. Colvin, No. 3:13-CV-638-CHL, 2015 WL 796604, at *4 (W.D. Ky. Feb. 25, 2015); see also Clark, — Fed.Appx. —, 2016 WL 6958640.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.