Brett Gibbs Gets His Day In Court — But Prenda Law Is The Star

Law

My past coverage of the Prenda Law saga is here.

There are few things more terrifying to a lawyer than a furious federal judge.

Today I saw one of those things.

It was a federal judge who was furious, intimately familiar with the case, and consummately prepared for the hearing.

Today United States District Court Judge Otis D. Wright II made it explicitly, abundantly, frighteningly clear that he believes the principals of Prenda Law have engaged in misconduct — and that he means to get to the bottom of it.

It was one of the most remarkable hearings I have ever witnessed.

The Scene

Today was the hearing on Judge Wright's Order to Show Cause, directing former Prenda Law "Of Counsel" Brett Gibbs to show cause why he — or others associated with Prenda Law — should not be sanctioned. (I previously wrote about the circumstances leading up to that order.) The hallway outside Judge Wright's courtroom was crowded half an hour before the hearing — crowded with lawyers, press, past defendants targeted by Prenda, Electronic Frontier Foundation representatives, and various interested citizens. I didn't know Mr. Gibbs by sight, nor his lawyers, but I guessed when they rounded the corner, looked at the crowd, and assumed facial expressions I'd summarize as aw, this has 'long day' written all over it.

Eventually I counted 42 spectators in the courtroom, not counting lawyers for people present.

Judge Wright Minces No Words

Judge Wright took the bench, grim and stentorian and bow-tied, and immediately commenced to take absolutely no shit from anybody. "I spent the whole weekend reading a deposition," he said, referring to the astounding deposition of Prenda principal Paul Hansmeier. "It is perhaps the most informative thing I have read in this affair so far." There was a collective intake of breath from the onlookers, who guessed that was not a good thing for Prenda Law. They were right. "There was so much obstruction in this deposition that it's obvious that someone has an awful lot to hide," Judge Wright commented later.

Wright began by establishing who was present. To his visible irritation — if not surprise — John Steele and Paul Hansmeier and Paul Duffy and their paralegal Angela Van Den Hemel were not present. Heather Rosing, their attorney who had filed a last-minute application seeking to excuse their presence, was there, but Judge Wright was not having any of her. She said her clients were "not physically here" — implying they were here in spirit, of which I have no doubt. Judge Wright angrily pointed out that she had filed her application late Friday afternoon, very much the last minute. She began to protest that her clients had only been served last Thursday, but he cut her off and directed her to take a seat. She did not participate further in the hearing except to note that her clients were available by phone. Judge Wright did not take the opportunity to give them a call. He noted that he had "extended an offer" for them to attend (a rather gentle description of his order) and that an "opportunity to explain themselves" was all that he was required to give them. I, for one, took this to mean that he would make rulings about their involvement without further input from them.

What followed was three hours of witnesses and legal arguments. I will deal with them thematically rather than chronologically.

The Real Alan Cooper Stands Up And Reveals Threats

One of the most interesting live witnesses was Alan Cooper — the actual Alan Cooper, who has accused Prenda attorney John Steele of stealing his identity to use as the figurehead executive of Prenda's various "clients." Cooper is a tall, rangy man, dressed modestly today in jeans and a t-shirt, looking a bit like a gray-haired Jim Caviezel. He took the stand at Judge Wright's bidding, and clearly nervous and out of place in the magisterial federal courtroom, told his story. He explained that he took care of two houses Steele owns, and Steele let him stay in one as payment. He knew Steele when Steele was in law school; later he knew Steele to aspire to be a divorce attorney, and then later something else. "Something in . . . internet porn piracy?" Cooper said hesitantly. "Internet porn piracy sounds pretty good," quoth Judge Wright. (In interacting with Cooper, Judge Wright became kindly, but with his anger writhing visibly just below the surface.) Cooper said that Steele bragged of wanting to make "$10,000 a day" by "sending letters to downloaders." Cooper himself is "not very internet savvy" and couldn't say more about the plan.

Eventually, Cooper said, Steele told him words to the effect that if anyone called him about Steele's law firm or anything "out of place," Cooper should call Steele. But Cooper was clear: he never signed anything as an executive for any of Prenda's clients, was never asked to be a representative of any of the Prenda Law client entities, and never agreed to do so. Shown signatures purporting to be his, he disclaimed them. "I use a middle initial," he said, and these signatures did not. He also disclaimed even seeing lawsuits filed using his signature or assignments of copyright bearing his signature in multiple cases. Cooper said that the address Prenda Law used for him wasn't his, and that the johnsteele@gmail.com email address Prenda Law used for him definitely wasn't his. He also wasn't familiar with web sites registered using his name. "No tissues dot com — or perhaps that's pronounced not issues dot com," said Mr. Pietz, getting the best laugh of the day.

Gibbs' attorney Andrew Waxler tried gamely to object to some of this evidence on the grounds that some of the cases mentioned weren't listed in Judge Wright's OSC. "It's about fraudulent practice in federal court" said Judge Wright in the sort of eerily level tone that makes a lawyer wish the judge were yelling again instead.

The most dramatic part of Cooper's testimony — and perhaps the most dramatic moment in the hearing — came when Cooper described what happened when his lawyer Paul Godfread notified Prenda Law that he was suing for the misappropriation of his identity. Within minutes, he said, John Steele began to call him. Steele called many times, and over the course of weeks sent texts and left several voice mail messages. Mr. Pietz played the messages for the court.

In each message, Steele began by telling Cooper that Steele understands that Paul Godfread is only representing Cooper in Cooper's lawsuit, not in Steele's and Prenda's and Duffy's lawsuits against Cooper. It's evident that Steele was saying that in an attempt to justify why he would be directly calling a represented party, which lawyers are prohibited from doing by the disciplinary rules of every jurisdiction. (Moreover, it's not clear that it's true). (Edited to add: In the comments, Erik points out that Steele was representing himself in his own defamation suit, and would probably characterize this as a party contacting a party rather than an attorney contacting a represented party. The problem with that argument is that Steele also mentioned the other two lawsuits in the messages.) In the calls, Steele talked with escalating intensity about how Cooper was now facing lawsuits, that Cooper needed to call Steele to talk about being deposed and responding to discovery, how things were going to "get ugly" now, and how things were now "complicated." On hearing the voice messages, I thought there was only one reasonable interpretation: John Steele was trying to menace and intimidate Alan Cooper to get him to back off from talking about John Steele's use of his name. By the end of the calls, there was a stunned silence in the courtroom, and I suspected that many spectators were sharing with me a deep sympathy for Mr. Cooper and an abiding sense of revulsion for John Steele. Judge Wright rather clearly felt mercy towards Mr. Cooper as well, some of which bled into pointed comments to Brett Gibbs' legal team. "You turn it from the O-F-F position to the O-N position" he said rather sharply when Gibbs' counsel asked how to turn the monitor on their table on.

By the way, someone told me that the Electronic Frontier Foundation may be picking up Mr. Cooper's expenses for flying to Los Angeles. Good for them if that's true.

AT&T and Verizon Say They Didn't Get The Order

Judge Wright also permitted testimony from attorneys for AT&T and Verizon. You may recall that one of Judge Wright's concerns — to use the mild term — was the allegation that though he had ordered a stay on discovery in the Prenda Law cases before him and ordered Prenda Law to send his order to the ISPs, Prenda Law did not do so and in fact collected consumer data from the ISPs after Judge Wright's order. Today Verizon filed a declaration directly contradicting Brett Gibbs' assertion that they had been called off. On the stand, attorneys for Verizon and AT&T asserted that their clients never received Judge Wright's order from Prenda Law, and AT&T's lawyer said that Prenda Law paralegal Angela Van Den Hemel continued to contact AT&T seeking the status of the pending subpoenas. It was only after AT&T itself discovered Judge Wright's order on PACER and responded to her that discovery was stayed that she subsided.

Brett Gibbs' attorneys pointed out — rather reasonably — that the ISP's attorneys couldn't say of their own knowledge what their clients did or didn't receive, and suggested that ISPs are known for destroying such documents too quickly. (On this point Judge Wright pointed out that it seemed that Verizon had maintained everything else except the purported notification from Prenda Law, and characterized Gibbs' argument as "they eliminate their documents pretty much the way Mr. Gibbs eliminates original documents," which was perhaps not the response Gibbs was hoping for.)

On this point, Gibbs' attorneys represented — and Gibbs testified — that the other attorneys of Prenda Law were responsible for handling all subpoena-related correspondence, that Gibbs reported Judge Wright's decision to John Steele and Paul Hansmeier, and that they told Gibbs that they would take care of it, and later claimed they had. But Judge Wright made Gibbs admit that Gibbs found out that the ISPs had produced documents to Prenda Law after Judge Wright's order, and never updated the court about that or amended his prior status report to the court. To put it mildly, Judge Wright was not happy about that.

Client, Client, Who's The Client?

It was clear from the beginning of the hearing that Judge Wright viewed Prenda Law's clients as shams — as mere instruments of the lawyers involved. "The only entities getting funds are law firms," said Judge Wright. There was "no effort to transmit those funds to the entities," which got "not dime one," and the entities had not filed income tax returns, because they had no income. Wright also pronounced it "very interesting" that Hansmeier's declaration suggested that settlement funds were being moved from one firm's client trust account to another. He demanded of Waxler: "Is that what you get? That's what I get." Waxler responded that Gibbs had no personal knowledge of such things, and suggested that Hansmeier's deposition showed he was the one with knowledge. "Mr. Hansmeier has no knowledge of anything," Judge Wright scoffed, rather accurately depicting Mr. Hansmeier's know-nothing stance at his deposition. There was a nervous titter — one of many — in the courtroom.

Waxler suggested that Prenda Law retains the funds to pay litigation expenses for things like forensics. "Like Hansmeier's brother?" Judge Wright shot back, referring to payments to Hansmeier's brother who acted as a computer forensic expert. Waxler later suggested that the funds are used to retain law firms. "They retain firms? Seriously? You can barely keep a straight face!" retorted Judge Wright. Judge Wright concluded that the law firms "basically prosecuted on their own behalf."

All of that is important, by the way, because it goes to the disclosures that litigants must make in filing a federal case. Adam Steinbaugh has a good description of the federal rules requiring lawyers to disclose the parties with an interest in the lawsuits they file or defend. Judge Wright's comments strongly suggested that he believed that Prenda Law's principals were the only beneficiaries of these lawsuits, and that by concealing their interest, they were violating applicable federal rules. Under tough questioning from Judge Wright, Gibbs' attorneys said that Gibbs made no such disclosures because he was aware of no such hidden interests — he relied entirely on Hansmeier and Steele for client information.

No Crying in Baseball, No Speaking Objections In Los Angeles

Mr. Pietz called a former client, Jessie Nason, who briefly testified that Brett Gibbs sued him in state court on various harebrained substitute-for-copyright state law claims, and that Gibbs had represented to a state court that he was able to identify Nason as a downloader because he lived alone. Nason noted indignantly that he doesn't live alone, he lives with his wife, and therefore it wasn't right to assume that he was the downloader. Dude, I don't think you've thought this plan all the way through. This testimony fell largely flat — Judge Wright had already clearly formed an opinion that Mr. Gibbs' investigation of the identity of downloaders was insufficient, and Nason's testimony didn't seem to accomplish anything. When one of Gibbs' attorneys objected, at length, Judge Wright rather sternly told him that there are no speaking objections in Los Angeles (meaning you say "objection, irrelevant," and then sit down — you don't speechify). Damn straight.

Brett Gibbs' Terrible, Horrible, No Good, Very Bad Day

Eventually Gibbs' lawyers called him to the stand. He's a tall, thin, dark-haired young man with a serious expression. He looked appropriately unhappy. I felt bad for him. "Let me be honest with you," he stuttered at one point. "That would be good" said Judge Wright, deadpan.

Gibbs explained that he was hired as an independent contractor — not an employee — by Steele & Hansmeier, and later by Prenda Law. He took all his direction from Hansmeier and Steele — which cases to file, what to do with them, etc. Later, when Judge Wright began to question Prenda Law's approach, he and Hansmeier and Steele together made a "cost benefit analysis" and decided to pull out of cases in this district. I'm sure. Later in January 2013, he said, Hansmeier offered him a job as "in house counsel" at Livewire LLC. This made him, Hansmeier told him, in house counsel of AF Holdings as well, because Livewire LLC owned AF Holdings.

On this point there was a rustling in the audience, where many people remembered that in February 2013 Hansmeier testified in San Francisco that a mysterious "undefined beneficiary trust" owned AF Holdings, not Livewire. Gibbs nervously explained that he was informed that the trust had sold AF Holdings to Livewire, but then learned at the time of the deposition that the transaction had not happened yet, hence Hansmeier's testimony. I'm not sure what that made Gibbs between January and February, but that's neither here not there.

Gibbs explained that he learned that Prenda Law, without his permission or knowledge, was sending out many letters with his signature stamp demanding settlements in cases across the nation. Ever optimistic, he asked Mark Lutz to stop it — but Lutz unsurprisingly responded that this was a matter for Steele. Gibbs smartened up and quit, substituting out of all California cases and letting Paul Duffy of Prenda Law substitute in.

Quitting under those circumstances sounds reasonable. Yet Judge Wright was aghast that Gibbs knowingly allowed Prenda Law to use his phone number and email address on Prenda Law cases filed in other states across the country by other lawyers. Gibbs explained he was tasked to help those other lawyers, and that he would forward messages to them. "That doesn't sound sensible to me," said Wright, rather understating it.

Judge Wright also questioned Gibbs rather harshly on how he identified downloaders, suggesting that he found Gibbs' methodology (which included looking at maps to determine how far wifi signals from houses might reach) to be entirely insufficient. Judge Wright was looking at different maps. In fact he revealed that he looked up things on Google Earth himself — a comment that bought him much geek cred in the courtroom. (Pietz had more, by virtue of using an iPad mini to display his exhibits on the monitors, which I regarded as simply showing off.)

I found Gibbs believable as a young attorney out of his depth who fell in with the wrong crowd and made bad choices. But Judge Wright was clearly not entirely satisfied. He quizzed Gibbs on why he didn't file notice of related cases informing the court that the various Prenda Law cases were related. Gibbs responded that courts in San Francisco had said that in Prenda Law cases up there, Prenda improperly joined multiple defendants in the same case even though they should be separate. That, Judge Wright points out, confuses the question of joinder of parties in one case with the question of whether cases are related, as every attorney in the room (save Gibbs') nodded. Ultimately, on this point as on others, Gibbs said that Steele and Hansmeier made the decision.

We're All Perry Mason In Here

In real life, people in the audience in court proceedings do not spring up to make dramatic revelations, because that gets you arrested. Today, it happened. Just after Gibbs testified that he had only limited responsibility for AF Holdings, an attorney in the audience stood and asked to be heard. I cringed, waiting for the kill. But Judge Wright asked him who he was and what he wanted. He identified himself as an attorney for Paul Godfread, who in turn is Alan Cooper's attorney. Gibbs, he said, spoke with him in November 2012 and represented himself as "national counsel" for AF Holdings, one of the Prenda Law clients. Wright shook his head. "Have you noticed," he said in rhetorical tones, "that every representation made by a lawyer with Prenda Law is not true." The lawyer sat back down again. Some might say that didn't bode well for Prenda.

The Road Ahead

Ultimately Judge Wright took the matter under submission, meaning he will rule in writing. "Good luck to you," he said to Gibbs as he stepped down, eliciting more nervous chuckles.

Brett Gibbs is in trouble. I buy him as a dupe here. Indeed, he admitted that "maybe" he felt duped. Yet though he pointed to Hansmeier and Steele as the decision-makers in this travesty, and disclaimed any knowledge of wrongdoing, he and his attorneys seemed oddly reluctant to throw Steele and Hansmeier all the way under the bus. It's more like he handed them a bus schedule and gave them a gentle shove in that general direction. Gibbs continued to argue that it wasn't clear until Cooper's testimony today that the Cooper signatures weren't genuine, a position that drew guffaws in the courtroom and an incredulous expression from Judge Wright. He and his attorneys seemed to want to suspend judgment about whether Prenda committed any misconduct at all — a tactical error at this point, I think, and harmful to their credibility. The judge interrupted their closing arguing by asking pointedly whether a lawyer — even if he is supervised by people out of state — has an obligation to investigate facts himself. Ultimately, Judge Wright did not sound inclined to accept Gibbs' innocent stance.

Wright did not say, explicitly, what he would do about Steele, Hansmeier, Duffy, or the rest of the Prenda Law team. But when Pietz began laboriously to explain the basis for jurisdiction over each of them, Wright cut him short, suggesting that he found the evidence clear. (So, for the record, did I, given the evidence of Steele's contacts with California, Steele's and Hansmeier's supervision of Gibbs in California, and Duffy's substitution into cases in California and membership in the California bar. Their lack-of-jurisdiction argument is borderline frivolous.) I suspect, based on his comments, that Judge Wright will not let the consequences of this situation rest entirely on Gibbs' shoulders. What could he do? He could probably sanction the Prenda Law parties under his inherent authority based on their supervision of Gibbs. But I suspect Judge Wright will go further than that, with criminal referrals and messages to various state bars. There could also be further orders to show cause, or even bench warrants. Judge Wright didn't seem inclined to give them warning. But every indication is that they are in real legal peril.

There's been a lot of anticipation of today's hearing. The hearing lived up to it. It was a disastrous day for Prenda Law.

I'll analyze Judge Wright's order when he issues it.

My thanks to Mike Masnick at Techdirt for letting me cross-post this there.

Edited to add: Megan Geuss from Ars Technica was there too, and has a writeup.

Last 5 posts by Ken White

174 Comments

165 Comments

  1. Delvan  •  Mar 11, 2013 @8:03 pm

    At last! I've been madly refreshing Popehat as the night went on, surviving on scraps of tweets and a delicious apertif by Adam Steinbaugh. Now for the main course!

  2. Bear  •  Mar 11, 2013 @8:04 pm

    I'm not sure if I've turned into a total dork, if the Prenda Saga is the best "reality programming" on the planet, or C) all of the above. I've been checking Popehat regularly today for the results of the order to appear. And I'm not a lawyer.

    While I read the post carefully, let me drop a question here: Other than the monumental — if only apparent (he added to CHA) — stupidity that makes Righthaven look good, in what substantive way does "Team Prenda" et al (I don't have the org chart handy to tell which shell did what) buying rights (assuming there really is an Alan Cooper who signed the paperwork) and attempting to sue the bejeezus out of people differ from Righthaven "buying rights" and attempting to sue the bejeezus out of people? Seems I recall that didn't turn out well for Righthaven (and still isn't: http://arstechnica.com/tech-policy/2013/02/remember-righthaven-on-appeal-copyright-troll-looks-just-as-bad/)

  3. FRED  •  Mar 11, 2013 @8:10 pm

    Glad I wasn't the only one pressing refresh every 5 minutes.

  4. Kirk Taylor  •  Mar 11, 2013 @8:14 pm

    Staggering…

  5. Kate  •  Mar 11, 2013 @8:15 pm

    Thank you for giving us this great gift. It is truly appreciated.

  6. Michael S.  •  Mar 11, 2013 @8:18 pm

    @Bear – It sounds like Prenda bought the rights to the work(s) completely, where Righthaven attempted to buy the non-existent right to sue.

  7. anne mouse  •  Mar 11, 2013 @8:18 pm

    Been hitting refresh too… "he tweeted *two hours ago* that he'd started writing! What's taking so long!"

    It was worth the wait. Some of the best legal writing I've ever seen.

  8. Gary  •  Mar 11, 2013 @8:19 pm

    @FRED: "Glad I wasn't the only one pressing refresh every 5 minutes."

    Good God, man! I couldn't wait that long?!?!

  9. DaveCA  •  Mar 11, 2013 @8:20 pm

    For the record, we talked to some of the EFF guys during the intermission, they were responsible for flying Mr. Cooper out. Various promises of donations to help defer their costs were offered, and I would suggest any who have a few bucks to spare throw it to EFF if you get a chance.

  10. Josh C  •  Mar 11, 2013 @8:21 pm

    Righthaven had wierd and complicated definitions of "ownership".

    Reading through this, I'm starting to feel bad for them. It's one thing to joke or vent about e.g. DIAF; it's pretty horrific if it actually happens. The same applies here. Things are about to go horribly wrong for these folks. Not that they don't deserve it; I'm just not morbid enough to enjoy it.

  11. SassQueen  •  Mar 11, 2013 @8:23 pm

    It's a day like this that makes me glad I joined twitter a few weeks back. Good stuff. Can't wait to read the judge's ruling.

  12. George William Herbert  •  Mar 11, 2013 @8:24 pm

    Ken, thanks for attending and for the writeup.

    I am still amazed at how thin the shells were here. Had the shells been half-baked and a couple of layers deeper it might not have been this easily discerned. But no…

  13. Shay  •  Mar 11, 2013 @8:24 pm

    Could even Frank Capra do justice to this, one wonders.

  14. Dan  •  Mar 11, 2013 @8:26 pm

    This was a satisfying read. Would have probably been even more satisfying if the other Prenda people had bothered to show up…

  15. Christopher C.  •  Mar 11, 2013 @8:26 pm

    I find myself amused that you counted 42 spectators for a hearing held on Douglas Adams' birthday. :)

  16. Joe Pullen  •  Mar 11, 2013 @8:26 pm

    I shall retire today fully satisfied and knowing there is still more to this delicious saga.

  17. Anonymous  •  Mar 11, 2013 @8:28 pm

    My recollection is that when Jason Sweet, Godfread's attorney and long time defender of John Does v. Prenda was asked "have you noticed… That every representation made by a lawyer with Prenda Law is not true?" by Judge Wright, he actually reaponded with "I've known that for three years" before sitting down. It was quite dramatic.

  18. Kat  •  Mar 11, 2013 @8:29 pm

    Mmmmmmmmmmmm.

    That was worth the wait.

  19. Noah Callaway  •  Mar 11, 2013 @8:30 pm

    @Ken I want to reward you with expensive purchases via your Amazon referral link. Do you have any textbook recommendations for someone that would like to learn more about law? Common first-year law textbooks, seminal legal texts, things like that would be awesome. Other lawyers also totally welcome to provide recommendations.

    Seriously. Awesome post. Did not disappoint.

  20. Anonymous  •  Mar 11, 2013 @8:31 pm

    Wright also made a comment that the shell companies were "not even shells."

    THAT was a money quote.

  21. FRED  •  Mar 11, 2013 @8:36 pm

    This is all kinds of amazing. You should have required a password to read this. $20 pay per view.

  22. AlanF  •  Mar 11, 2013 @8:37 pm

    You missed one of the best comments of the day. You wrote:

    "Wright shook his head. "Have you noticed," he said in rhetorical tones, "that every representation made by a lawyer with Prenda Law is not true." The lawyer sat back down again."

    Before he sat down, the lawyer said, "I've know that for three years."

    My only question now is whether Judge Wright will keep digging for details, or if he will simply turn it over to the DOJ. Either way, I think Steele, Hansemeier, and company are totally and completely screwed.

  23. Bear  •  Mar 11, 2013 @8:40 pm

    @Josh C: "Righthaven had wierd and complicated definitions of "ownership"."

    Hence my quotation marks. Yeah, Righthaven tried invent a… call it "limited" copyright that "let" them sue without controlling the material. But Team Prenda (someone correct me if I'm wrong) apparently "bought" copyrights over the signature of a seemingly nonexistent "Alan Cooper", or… well, see above. [grin] in neither case does it seem to this non-attorney that a valid copyright was owned by the litigants

    "I'm just not morbid enough to enjoy it."

    I am. [grin]

    @ George William Herbert: "I am still amazed at how thin the shells were here."

    Thin? Someone should contact the Nobel physics committee. These guys appear to have created shells of less than Planck length.

    I see bench warrants in someone's immediate future.

    Thanks, Ken! Who knew I'd find law so entertaining? Your posts are even more fun than Derek Lowe's "Things I won't work with" chemistry blog posts (http://pipeline.corante.com/ , for those interested; I'm not a chemist either, but anything that starts with seeing how many fluorine atoms you can hang on a single molecule, then adds 700 degrees C is exciting).

  24. Wick  •  Mar 11, 2013 @8:42 pm

    Thanks for the write up. I understand your comment about having Judge Wright's baby. Damn.

  25. Howard  •  Mar 11, 2013 @8:44 pm

    The best way for Prenda to "monetize" anything right now is to hurry to sell the rights to their story.

  26. James Pollock  •  Mar 11, 2013 @8:44 pm

    If he escapes with a law license, is Mr. Gibbs employable?

  27. Fildrigar  •  Mar 11, 2013 @8:44 pm

    I half expected to see the name UST pop up somewhere.

  28. Matthew Cline  •  Mar 11, 2013 @8:45 pm

    "I spent the whole weekend reading a deposition," … "It is perhaps the most informative thing I have read in this affair so far."

    BURN!

    One of the most interesting live witnesses was Alan Cooper — the actual Alan Cooper, who has accused Prenda attorney John Steele of stealing his identity to use as the figurehead executive of Prenda's various "clients."

    But according to the "informative" deposition, Alan Cooper was merely a corporate representative.

    Shown signatures purporting to be his, he disclaimed them.

    But did the handwriting look similar, or different? That is, did the disclaimed signatures look like they were trying to imitate Cooper's real signatures?

    This made him, Hansmeier told him, in house counsel of AF Holdings as well, because Livewire LLC owned AF Holdings.

    On this point there was a rustling in the audience, where many people remembered that in February 2013 Hansmeier testified in San Francisco that a mysterious "undefined beneficiary trust" owned AF Holdings, not Livewire. Gibbs nervously explained that he was informed that the trust had sold AF Holdings to Livewire, but then learned at the time of the deposition that the transaction had not happened yet, hence Hansmeier's testimony. I'm not sure what that made Gibbs between January and February, but that's neither here not there.

    According to a screen-capture at fightcopyrighttrolls.com, Mark Lutz was the CEO of Livewire as of January 31. Would it be unusual to be the CEO of both the buying company and the yet-to-be-bought company at the same time?

  29. Aaron W  •  Mar 11, 2013 @8:48 pm

    This is jaw-dropping stuff. I realize we're in terra incognita here as far as precedence goes, but I'd love for Ken to at least handicap the chances of various outcomes for Gibbs, Steele, and Hansmeier.

    It seems like we're well beyond ethical misconduct and into the realm of outright fraud, identity theft, and intimidation. Maybe racketeering, too.

    So what are the odds Judge Wright keeps digging on his own here, or will he hand everything over to prosecutors now? What kind of sanctions/punishment could he hand out on his own to anyone other than Gibbs? And assuming Wright does recommend a criminal investigation or charges, what are the chances that ends with a trial or prison time?

  30. Dan Weber  •  Mar 11, 2013 @8:48 pm

    I can see why Adam called this a once-in-a-lifetime thing. Most people stop before they get themselves that deep into the pot.

  31. En Passant  •  Mar 11, 2013 @8:48 pm

    Haven't even finished reading it all yet, but have two observations.

    Gibbs' attorney Andrew Waxler is a Certified Legal Specialist in Legal Malpractice Law, certified by State Bar of California.

    Heather Rosing is also a Certified Legal Specialist in Legal Malpractice Law, certified by State Bar of California.

    In addition, Ms. Rosing is a current member of the State Bar of California Board of Trustees.

  32. Brad Hicks (@jbradhicks)  •  Mar 11, 2013 @8:53 pm

    Wait, wait, wait … back up a second!? Gibbs testified, Godfread's own lawyer stood up IN THE AUDIENCE? and FROM THE AUDIENCE? called Gibbs a liar, and the judge not only didn't sanction him for this, let him do it, let it become part of the record? No way. You have to be remembering this wrong, right? Because that's … is that even legal? If it is even legal, has any judge in the last hundred years let his courtroom be hijacked like that in the middle of a hearing? Isn't the procedure supposed to be him filing that as an affidavit afterwards, not jumping up and interrupting the proceeding?

    Wow. My mind is blown.

    (The next place my mind went was, "well, if Prenda wants to establish grounds for appeal, if they need more evidence that the judge is prejudiced against them, didn't they just find the smoking gun?" I mean, if someone with only a peripheral involvement in the case had jumped up in the audience and called The Real Alan Cooper a liar, would the judge have tolerated that?)

  33. John Thinkishness  •  Mar 11, 2013 @8:53 pm

    Ken,

    Amazing post, and thanks for getting it up so quickly after the hearing.

    How long does it normally take a judge to move forward after a hearing like this? Or is this one so unique that it's anyone's guess where it is going and how long that will take?

  34. That Anonymous Coward  •  Mar 11, 2013 @8:54 pm

    …if their reputation is so low it can not be harmed by statements…

    Vindication feels good.

  35. Noah Callaway  •  Mar 11, 2013 @8:56 pm

    @Aaron W IANACTAL (I Am Not Anything Close To A Lawyer), but my shot in the dark guess is that Gibbs gets painful, but not career-ending sanctions; the rest of Prenda (Hansemeir, Steele, etc) have their names referred to the DOJ for fraud and other related charges.

  36. John O.  •  Mar 11, 2013 @8:57 pm

    There just went Prenda's barracks… good luck fighting off that Utralisk with just an army of SCVs!

  37. Burk  •  Mar 11, 2013 @9:01 pm

    What about Mark Lutz and Peter Hansemeier? Did they show up today? File an opposition? None of the coverage I've read this afternoon mentions either guy. . .

  38. Matthew Cline  •  Mar 11, 2013 @9:02 pm

    What about Mark Lutz and Peter Hansemeier? Did they show up today? File an opposition?

    Neither showed up, but their lawyer did, and their lawyer said the judge could talk to them via phone; the judge declined the offer.

  39. Tali McPike  •  Mar 11, 2013 @9:02 pm

    John O, there is one flaw with your analogy, this is not just one Utralisk, this is like an ULTRALISK RUSH (AKA the FiretoBlaze build, if you watch LagTV When Cheese Fails). Even if they had more than SCVs, they would be doomed at this point.

  40. Tali McPike  •  Mar 11, 2013 @9:06 pm

    @ Matthew, my understanding is that the lawyer was representing Steel and the other Hansemeier, not Lutz or Peter H. Although I think everyone assumed they would also not show up.

  41. MattS  •  Mar 11, 2013 @9:06 pm

    "Brett Gibbs' Terrible, Horrible, No Good, Very Bad Day"

    That's a great reference. The only way it could be funnier is if the judge used it himself.

    In other news, popcorn futures up 63%. :)

  42. Matthew Cline  •  Mar 11, 2013 @9:07 pm
  43. Jeff  •  Mar 11, 2013 @9:08 pm

    Brad Hicks:

    If I recall, the Judge ordered Cooper to appear. So since Cooper isn't a "party" here (well, depends on if he's your "real" corporate rep, yadda yadda; but he maintains he's not), he would be sitting in the audience (with his lawyer) and not with the parties.

  44. Burk  •  Mar 11, 2013 @9:13 pm

    @Matthew – Were Lutz and Peter Hansemeier represented by Heather Rosing? They weren't mentioned in her Friday filing, near as I can tell.

    Now that I think about it, I haven't seen any mention of the "other" Alan Cooper, either, though I'm guessing his lack of appearance is no mystery.

  45. MattS  •  Mar 11, 2013 @9:15 pm

    Bear,

    "I see bench warrants in someone's immediate future."

    I see U.S. Marshals in several someone's immediate futures.

  46. Burk  •  Mar 11, 2013 @9:17 pm

    @Tali – I'm not surprised that Lutz and Peter Hansemeier didn't show up, but I'm curious whether they even bothered to make up an excuse.

  47. JLA Girl  •  Mar 11, 2013 @9:18 pm

    Wow! Just. Wow. I've never heard anything like it. Any idea when Judge Wright will give his decision? I'll need to stock up on popcorn.

    Thanks so much for the wonderful write up, Ken.

    And poor Mr. Cooper. This is gravy for his case against these guys but to have to go through all this. . .

    What's the sanction in CA for failing to aend out Wright's order to the internet providers? (much less lying about it later)

  48. Chris R.  •  Mar 11, 2013 @9:18 pm

    Tonight on Court TV, a Court TV original Wrighteous Anger.

    Seriously, they didn't show up because they didn't know if they'd be allowed to leave.

  49. sta  •  Mar 11, 2013 @9:22 pm

    I haven't had this much fun watching crazy law since the SCO litigation.

  50. Jim Tyre  •  Mar 11, 2013 @9:23 pm

    Nice, Ken, very nice. It's too bad that Mitch and I had to leave a bit early to take Alan Cooper and Paul Godfread back to the airport. But, oddly, they seemed to want to make their flight back to Minnesota.

    Great blog post, and thanks for filling me in on what we missed after we left.

  51. MattS  •  Mar 11, 2013 @9:25 pm

    JLA Girl,

    "And poor Mr. Cooper. This is gravy for his case against these guys but to have to go through all this. . . "

    Poor Mr. Cooper? I am surprised Judge Wright didn't ask him if he wanted more popcorn.

  52. Craig  •  Mar 11, 2013 @9:26 pm

    I was there. Why is it that no one asked how much Gibbs made from his work at Prenda or what the settlement amounts were?

  53. AlphaCentauri  •  Mar 11, 2013 @9:30 pm

    @James Pollock:
    "If he escapes with a law license, is Mr. Gibbs employable?"

    I hear Mr. Steele needs a new caretaker for his property. He may be going away for a while.

  54. Steve Simmons  •  Mar 11, 2013 @9:31 pm

    So . . . the Prenda guys from Minnesota declined to show up. What are Judge Wrights options here? Or more broadly, what powers does a federal judge have at this point in the game?

  55. Zack  •  Mar 11, 2013 @9:31 pm

    This case is right up there with the ruling where the SCGOP got their behind handed to them in Anderson County. They basically openly thumbed their nose at a SC Supreme Court order and flat out refused to follow it. (I still have a copy of the reprimand they set out and I read it whenever I need a dose of schadenfreude)

    (Full disclosure, I am a republican and politically conservative, but I love seeing people who overrreach their power get their behinds handed to them.)

    (Why am I typing in parentheses again?)

  56. MattS  •  Mar 11, 2013 @9:35 pm

    Zack,

    "(Why am I typing in parentheses again?)"

    (Because they are there?)

  57. MattS  •  Mar 11, 2013 @9:36 pm

    Steve Simmons,

    "What are Judge Wrights options here?"

    http://www.usmarshals.gov/

  58. peej  •  Mar 11, 2013 @9:36 pm

    Thank you, Ken, for your reportage here; your writing is careful and concise, and yet, as always, delightful. What a job you did of setting the scene in the courtroom… it was the next best thing to being there.

    Now we get to wait on tenterhooks–whatever those are–for the ruling. Oh boy oh boy oh boy, as Calvin would say.

  59. MOG  •  Mar 11, 2013 @9:36 pm

    Very entertaining. Karma's a bitch.

  60. Orville  •  Mar 11, 2013 @9:37 pm

    @Zack:

    Conservative, liberal, if you don't feel some schadenfreude from this saga then something inside you has died.

  61. DaveCA  •  Mar 11, 2013 @9:41 pm

    One of my favorite moments was Gibbs saying he had to leave Prenda because working there exposed him to unwanted harassment. It didn't illicit as many laughs, but it was still a nice dose of his own medicine.

  62. Bear  •  Mar 11, 2013 @9:51 pm

    Someone educate this non-lawyer, please.

    Earlier, I compared this Prenda Saga to Righthaven. Both appear to have been set up simply to… say, pressure alleged infringers to pay up without this ever reaching court.

    But Righthaven didn't set up a series of cut-outs and shells, as it seems that Prenda (yeah, for shorthand, I will just refer to it all as Prenda) has done. But if the allegations of fraud in setting up the shells are true, what was the point in terms of legal wrangling? To this layman, it seems like that just opened up Prenda to more liability when/if it was revealed. What am I missing? There had to be some value to it, or they wouldn't have bothered.

    I guess I've watched too many movies and TV shows, because it looks like the main value of the cut-outs was as an early warning system, so the principals know when to make emergency plane reservations to some locale without extradition. And that can't be right. Is it a tax law thing (since the testimony and depositions make it appear they've been shuffling money between accounts)?

  63. G Thompson  •  Mar 11, 2013 @9:58 pm

    Brilliant analysis as always Ken, I think you have missed your real calling as a courtroom reporter or maybe even a "Law and Order" screenwriter ;)

    I'm wondering why Pietz even had to call a former client (Nason) especially when there were more less tenuous examples available though maybe not at short notice – though an affidavit would of sufficed.

    It seems this whole saga of Gibbs, Steele, Hansmeier, Duffy is a self replicating example of the following:
    This is a story about four people named Everybody, Somebody, Anybody, and Nobody. There was an important job to be done and Everybody was sure that Somebody would do it. Anybody could have done it, but Nobody did it. Somebody got angry about that because it was Everybody's job. Everybody thought Anybody could do it, but Nobody realized that Everybody wouldn't do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.

    I look forward to the Judge's response and am left wondering if it will place Prenda in more peril than there actions that have now become more public than they anyone ever dreamed of could do. If Gibbs is just a naive and green scapegoat in all of this he will be hard put to find work i the legal profession anywhere ever again – and that's the real tragedy (if true)

  64. En Passant  •  Mar 11, 2013 @10:05 pm

    In stupendous rapportage, Ken wrote:

    Wright also pronounced it "very interesting" that Hansmeier's declaration suggested that settlement funds were being moved from one firm's client trust account to another. He demanded of Waxler: "Is that what you get? That's what I get."

    This could present opportunity for a new definition of chutzpah: there was no improper handling of client trust accounts because there were no clients.

  65. Matthew Cline  •  Mar 11, 2013 @10:09 pm

    @Bear:

    But Righthaven didn't set up a series of cut-outs and shells, as it seems that Prenda (yeah, for shorthand, I will just refer to it all as Prenda) has done. But if the allegations of fraud in setting up the shells are true, what was the point in terms of legal wrangling? To this layman, it seems like that just opened up Prenda to more liability when/if it was revealed. What am I missing? There had to be some value to it, or they wouldn't have bothered.

    I remember reading that a lawyer representing themselves when filing Prenda-type lawsuits is at least severely frowned upon.

  66. John Ammon  •  Mar 11, 2013 @10:10 pm

    Outstanding, simply outstanding.

  67. Kevin  •  Mar 11, 2013 @10:15 pm

    Highly entertaining content. Highly entertaining prose. A++ would read again.

  68. Bear  •  Mar 11, 2013 @10:17 pm

    @Matthew Cline: "I remember reading that a lawyer representing themselves when filing Prenda-type lawsuits is at least severely frowned upon."

    That's part of what I don't get. Because isn't that exactly what Gibson did with Righthaven? I understood that he was filing the suits himself, and he was the CEO (I do see they've got a new attorney these days).

    Maybe I should just go to bed, then see if it makes sense i/n/ t/h/e/ later this morning.

  69. Jose Fish Taco  •  Mar 11, 2013 @10:19 pm

    I'm sorry, but I just can't understand all the people feeling "sorry" for Gibbs. If you think he was a total innocent through all of this, I think you're being suckered yet again. Does he deserve to go down as hard as Steele? No. But he deserves to go down.

  70. Alan W.  •  Mar 11, 2013 @10:28 pm

    I just recently started following Popehat and the Prenda saga. I too was clicking the refresh button, but as I am in UTC+1, my clicking started earlier than everyone else.

    Reading the posts, and the anticipation I feel reminds me of Breaking Bad. I love that show, and every time I finish an episode, I say to myself, "Damn that's good TV!", and anxiously await the next show. It is the same with the Prenda Saga. This is damn good reading!

    Many thanks Popehat!

  71. z!  •  Mar 11, 2013 @10:34 pm

    Wow, I say wow. This is more going to be more fun than the whole SCO debacle. (Had to interrupt my rum tasting this evening every so often to check for an update.)

  72. Toddsler  •  Mar 11, 2013 @10:37 pm

    Thank you for the excellent write-up.

  73. xbradtc  •  Mar 11, 2013 @10:39 pm

    INAL, but IIRC, the problem with Righthaven was their entire business model was basically extortion. ANY linkage of Righthaven "copyright" materiel generated not a DCMA takedown letter, but a demand for settlement, Fair Use be damned.

  74. xbradtc  •  Mar 11, 2013 @10:48 pm

    And again, INAL, but my understanding is that a law firm may not be its own plaintiff in this type of case, but instead must represent a third party. The shell game to conceal that Prenda and the client are essentially one and the same seems to have violated the rules of federal court.

  75. z!  •  Mar 11, 2013 @10:54 pm

    z wonders how many lawyers are preparing "take judicial notice" motions for their own cases. I'm also sure that just about every ISP in the USA larger than about 20 customers will know about this tomorrow.

    Pass the popcorn, please.

  76. Delvan  •  Mar 11, 2013 @11:00 pm

    @Bear

    Righthaven was, if I understand correctly, suing people for infringing rights, but Righthaven had no legal authority to do so. They either didn't actually own the rights (paying a "right to be the one who sues" fee to the real owner which isn't something you can actually sell) or were suing people for fair-use reposting of articles.

    I'd like to make it clear that as I speak about Prenda today, I am mixing facts well stated in depositions with things they have allegedly done. Take all of my commentary merely as my opinion of what I think has been going on, and where the distinction you're asking about lies.

    Prenda was suing people for infringing rights and, when you take away the shells (and assume the Alan Cooper shenanigans didn't stop them from acquiring rights they purchased using his moniker) they ultimately had legal authority to do so. They just, it would appear, lied about who they were representing (themselves). Depending on where they file suits, it might have been legal for them to have done so transparently, or they may have been required to have someone else represent them. They purchased the actual rights to the copyrighted works and were (after removing the shell game) the actual owner of the rights. Of course, since they're buying up works that purportedly have zero market value, they would have little incentive to purchase only litigation rights if such a thing were possible anyways.

    Both seem clear copyright trolls, lawsuit factories grabbing settlements by scaring victims/infringers. Righthaven had no legal grounds for the suits. Prenda has some grounds (own rights, evidence suggesting infringement occurred, though showing infringement by the actual defendent not so much).

    In the Righthaven case, there are news scraping blogs that commit actual infringement out there (Popehat, in fact, suffers similar infringement by scrapers). There were also plenty of people who actually did repost the articles and were completely within their rights to do so, being fair-use commentary on an article and the like, making Righthaven's activities both greedy & infringing on their 1st Amendment rights. It is extremely unlikely any of the infringers identified by Prenda were within their rights to distribute the media, but the named defendants aren't necessarily the person who was sharing the file: Prenda's actions were certainly awful against the victims but didn't hit on the 1st Amendment theme of this blog until the defamation suits. I think that's the distinction for the law types here, because all of the other violations of individual rights were present for both Prenda & Righthaven.

    I have strong personal distaste for sexuality blackmail, which is their alleged business model, for me Prenda bears a sicker feeling to my stomach, but I don't think there's any need for legislation to make such things "special" such that they meet my own emotional response, nor would I posit that others should hold it on the same level as infringement on 1st Amendment rights.

  77. Trent  •  Mar 11, 2013 @11:01 pm

    Ken or other former Prosecutors:

    So lets assume Wright has decided that Prenda is a bunch of vipers and in need of some good old fashioned federal pounding and that he refers the principals to the DOJ. What happens next? Do they send the FBI or Marshals out to do interviews and begin building a case? (I suspect the secretary/paralegal is going to be cutting some kind of testimony deal, and possibly Gibbs himself) Or do you think they have enough to file charges right away? Second, how quick will the bar act on anything he brings to them? I'm just trying to get an idea for how quickly the snakes will get stomped on.

  78. That Anonymous Coward  •  Mar 11, 2013 @11:14 pm

    @Craig – Check fightcopyrighttrolls.com and/or dietrolldie.com I do believe they have dissected the 'standard' settlement letters used by various trolls.

    I wish this had been recorded to video or even audio. With audio someone could do an awesome puppet show reenactment.

    @SJD & DTD *HUG* Its taken a very long time but I'm fairly certain many more people are now aware of what the community knew for a long time now about these operations. People can't believe what they are hearing and are confused as we just sit and nod our heads as they finally get it.

  79. Incongruent  •  Mar 11, 2013 @11:23 pm

    My God. It's like watching legal seppuku.

  80. Incongruent  •  Mar 11, 2013 @11:23 pm

    Only, without the honor.

  81. David Nieporent  •  Mar 12, 2013 @12:41 am

    I am still amazed at how thin the shells were here. Had the shells been half-baked and a couple of layers deeper it might not have been this easily discerned. But no…

    Forget "easily discerned"; as I said in one of the other comment threads, if they had just done things more above board, it could have been perfectly legitimate, and "discerning" things wouldn't be at issue. That's what I don't understand here. There are plenty of ways to legitimately structure their business model so as to make it entirely legal and "ethical" (sleazy, perhaps, but within the bounds of the rules.) Unlike Righthaven, their copyright suits are valid. All they had to do was not forge anyone's signature and instead find a real person to run one of the copyright-owning companies, and have this person be in the decisionmaking loop. There are plenty of people out there who would be willing to serve as figurehead clients for them (Mark Lutz?); why did they need to unilaterally put Cooper or Mooney's names on the paperwork?

    What are they actually hiding?

  82. Myk  •  Mar 12, 2013 @12:57 am

    @TAC – as has been noted elsewhere, there appears to be no – not one, not even cached – link to any of the content Prenda claims is being infringed. Would it be possible to identify 'Share #Zero' (i.e., the original seed upload) either by IP &/or date? This could potentially lead to some rather interesting questions – if (IF) it could be shown that the rights holder uploaded a file to bit torrent, would that then negate all subsequent claims of infringement against downloaders, as the intent was clearly to share the content (albeit as a honeypot)?

    PS – Thanks as always, Ken – great write-up.

  83. G Thompson  •  Mar 12, 2013 @1:16 am

    @Myk – The only way to know about the original torrent seeder is to actually get access to the logs of the original Hoster of the torrent (ie: where the .tor file was originally sent), and that in itself is mostly an exercise in futility (both legally and logistically), unless the actual hoster takes it upon themselves to oust the creator/uploader's IP.

    If in that unlikely scenario it is then able to be proven that the only place the torrent was created from was an agent of the copyright holder themselves then you have the exact same problem that occurred with Dtecnet in the iiNet v Roadshow case in Australia. ie: Does the authorised uploading of the file by the agents then become authorised downloading and distribution by others whereby any unauthorised use becomes moot. Also fraud can raise it's ugly head (barratry too though that's a stretch)

  84. none  •  Mar 12, 2013 @1:35 am

    I've just been watching Youtubes of the last scene of Mozart's Don Giovanni, where the Commendentore's statue appears and takes Don Juan to hell. I've never been in a federal courtroom before–do they have music in them? If yes, that's what I think they should have played when the judge comes into the room for this hearing. Those D minor chords that tell everyone what's about to happen. Don Giovanni, you invited me to dinner and I have come! Same deal for Prenda Law: they INVITED this.

  85. Myk  •  Mar 12, 2013 @1:36 am

    @G Thompson – yeah, I realise it's all but impossible to trace, I was just wondering whether it would be hypothetically feasible and if so what the outcome would be. Barratry – cool word!

  86. Anony Mouse  •  Mar 12, 2013 @2:36 am

    Brilliant analysis as always Ken, I think you have missed your real calling as a courtroom reporter or maybe even a "Law and Order" screenwriter

    Like anyone would believe this from a TV show.

  87. JohnnyCage  •  Mar 12, 2013 @2:51 am

    As incredible a saga as this has been so far, I'm afraid it may be wrapping up soon for us, at least in terms of vicarious enjoyment. I think its very possible that Wright will issue an awesome order taking Prenda, et al., to task for their misconduct, and then refer the whole mess to DOJ. After that, we won't hear details until they announce the plea agreement. I hope Wright stays on the matter, but there's just so much complexity and so many potentially serious violations at this point, he may conclude that DOJ is the proper investigator.

  88. Bruce  •  Mar 12, 2013 @4:26 am

    Is their business model just an updated version of the refund cheque issued from bad sounding company name scam? ie. the one where an order is placed and money taken but then a refund is offered for the non existant company from the "anal dildo specialists" company that people would be too embarrassed to take to the bank so they don't cash it.

    This seems to be offer almost empty threats and hope for settlement as marks don't want to fight a porn download claim against them.

  89. Anonymous  •  Mar 12, 2013 @4:41 am

    My understanding of the voicemail messages made Steele look even worse. Unfortunately they were voicemail messages, copied to something, played back through a PA system so it was quite difficult to understand.

    That said, what I believe I heard was Steele telling Cooper that he had contacted Godfread (Cooper's attorney) and that Godfread told Steele he was no longer representing Cooper. This being an attempt to trick Cooper into thinking he no longer had an attorney and thus had to deal with Steele due to the time-critical nature of the litigation Steele had initiated.

    I believe Godfread said something to that effect before the messages were played.

    Fortunately, if memory serves ,Wright said they would be transcribed and admitted, so maybe I won't have to speculate for long.

    Why Steele would think such a transparent trick would work when Cooper could just call Godfread to check is anyone's guess, but based on the number of times Steele was discredited it appears he is just broken and lies about everything, all the time. It's looking more and more like the reason for all this obfuscation, apparent forgery, etc. when they should have been able to accomplish their goals in a much, much more legitimate fashion is because Steele lies about everything if it's faster and easier than actually doing some work (like registering a copyright, litigating a case, creating a trust, filing a notice of related cases, filing tax returns, incorporating a shell company, hiring a corporate representative, etc. etc.). Threats and bluffs are the two tools that have taken him this far.

    I suspect this is why what appeared to be an attempt to discredit Cooper fizzled out. When the Alan Cooper "problem" became known to the anti-copyright trolling community some months ago, Steele made a couple of comments on Twitter (or perhaps one of the blogs he is so fond of) about how Alan Cooper will be sorry to learn the iPhone has a record function. I assume this is why Gibbs' attorney asked whether Cooper had ever left a message with Steele asking "how's my porn company doing." When Cooper simply answered "no" they dropped it like it was hot which seemed very strange, so I'm guessing Steele had told Gibbs he had such a message, but if the message exists Gibbs' attorneys did not have a copy (and even if Steele has some recording of someone saying something, I'll bet it's not really Alan Cooper). But it would seem that by that point, with Steele having been spectacularly discredited, and having disgusted the entire courtroom with his malice, they may have realized it was yet another of Steele's bluffs and decided against betting on Steele's word.

  90. Lucy  •  Mar 12, 2013 @4:41 am

    Thank you for a great write up. I woke up this morning with my mobile browser opened on Popehat face down on my chest. I experienced a simultaneous panic that I fell asleep before the post and excitement that there was something wonderful to read with my morning coffee.

    I have a couple of questions.

    What, if anything, can be done about the victims having paid already in past shakedowns? If this game is found to be fraudulent, those people paid to someone who didn't own the copywrites either (Fictitious Alan Cooper). Can there be any way they get some money back?

    Duffy has been noticeably unmentioned. As Steele and Hansmeier are painted the heavy hands in these matters, isn't Duffy just as resposible? Will there be an equal spreading of consequences?

    Steve Buscemi as Mark Lutz.

  91. Paul  •  Mar 12, 2013 @5:36 am

    The issue at the heart of all this is: does holding people legally liable for downloading off the internet violate basic constitutional rights to free speech? If I cannot tell if the server has the right to distribute, wouldn't this have a chilling effect on legitimate downloads?

  92. JEM  •  Mar 12, 2013 @5:38 am

    Ken, is there any way that Judge Wright can freeze their assets, or require some type of disgorgement of their profits? If I recall correctly, Steele and his associates have netted in the millions using this scheme. Losing the ability to practice law would be a lot more palatable if you have a fat bank account, IMHO. I'd think not touching their profits would send the wrong message.

    BTW, thanks for your write-ups on Prenda.

  93. Erik H.  •  Mar 12, 2013 @6:10 am

    You're wrong about the Rule w/r/t contact with represented parties. It's a common misconception so I'll explain:

    A party may always contact another party directly (absent an order to the contrary.) Nothing in the rules prevents that fact. And that holds true even when one party is an attorney and the other party is not, and it holds true even when there are attorneys involved.

  94. Bear  •  Mar 12, 2013 @6:18 am

    @Delvan & David Nieporent: re- Righthaven vs Prenda tactics.
    (First, to be clear, I'm not trying to be argumentative. I'm just trying to understand the legal niceties of what each company seems to have done. In both cases, it looks to this legal dimwit that the companies chose stupidly unnecessary — or unnecessarily stupid — courses of action.)

    Righthaven apparently bought such a limited "right" to the contested works that it was no real copyright (conferring a right to sue) at all. They seem to have been gambling that a court would recognize their… novel claim. Prenda (as things are looking now) apparently "bought" complete copyrights… but the ownership is seemingly clouded at best, and at worst fraudulent. My guess is that both were really hoping that no alleged infringer would really fight them in court, revealing their shaky ownership. But why go with the shaky ownership?

    I always wondered why Righthaven even bothered with acquiring even such a nominal "right", when they could have simply represented Stephens Media/LVRJ for a large percentage of the "settlements". In Prenda's case, they apparently jumped through the hoops that would give them ownership, but did that through multiple — and apparently bogus — cut-outs. As David asks, what are they actually trying to hide?

    It just seems to me that both companies played unnecessary games that put their ownership of the copyrights in doubt. I don't understand the tactic; presumably it made sense in some fashion in the legal arena. In Righthaven's case, I'd guess that the cunning plan was to let Stephens/LVRJ keep their rights without looking like litiginous @-holes going after bloggers (none too effectively [grin]). In Prenda's case… I just don't see the point of the clouded ownership at all. Unless it really was to give someone time to skip the country, except that if everything had been proper and above board no one would need to do that. Or… one possible "conspiracy theory"-class explanation just occurred to me as I typed; but I'm not about to publicly post that on a blog that Prenda is — surely — reading. It would be interesting to see if Judge Wright decides to have the money's final destination tracked down.

  95. Dan Weber  •  Mar 12, 2013 @6:19 am

    what was the point in terms of legal wrangling?

    There's the saying in white-collar crime: it's not the crime, it's the cover-up.

    I don't know how true it is in practice, but these guys were trying to avoid some small amount of hot water and ended up pushing themselves straight into the fire.

  96. PhilG  •  Mar 12, 2013 @6:29 am

    (Pietz had more, by virtue of using an iPad mini to display his exhibits on the monitors, which I regarded as simply showing off.)

    iPads are awesome for slideshows and displaying documents, I would totally recommend trying it if you haven't.

    Back on topic, awesome write up, thanks for the recap!

  97. Ken  •  Mar 12, 2013 @7:14 am

    @Erik: Good point, I forgot that he was representing himself in at least one suit. But was he acting as an attorney with respect to the other two suits?

  98. Sharon  •  Mar 12, 2013 @7:27 am

    My thoughts on the "why did they bother with the shell companies and sham signatures" bit: to keep control.

    They can't KEEP calling the shots, and more importantly, controlling the money, if it's truly an independent client. Sooner or later the person behind the corporate client is going to get outed by the targets of the suits (recall that one of the reasons in the deposition for using someone was to "protect him from harassment"). Not to mention the issue of now having a real person connected to a real company, which is the beneficiary of real money being paid in the settlements, and subject to tax reporting and liability.

    If the client is truly independent, he could say "Hey, I'm sick of being lamblasted in blogs and dealing with this crap and not seeing any of the settlement money you guys are getting in my name. And since it's MY company, you're fired as the attorney"

  99. swearyanthony  •  Mar 12, 2013 @7:30 am

    I am kinda sad the US doesn't have the whole "investigating judge" thing that the French and Spanish have. In the meantime, I will let Colbert speak for me, in gif form: http://img.gawkerassets.com/img/17wv9cbpffqrogif/original.gif

    (Getting a PACER account to stalk this case isn't too crazy, right?)

  100. Josh M.  •  Mar 12, 2013 @7:32 am

    Oh, gods…I can't breathe…can't stop laughing.

    This is fantastic work, Ken. I think I'm going to need an industrial-sized bag of popcorn for this one.

    And if you're ever in the greater Philadelphia/Baltimore area, you let me know. I'll buy ya a beer. It's the least I could do for all this awesome.

  101. Dave  •  Mar 12, 2013 @7:38 am

    I'd be curious to hear from others, but I assume that Judge Wright's authority to sanction is somewhat limited — i.e., the financial penalty must have some sort of relationship to the contemptuous conduct that occurred before his court, and not some sort of global penalty for the lawyer's conduct as a whole. It seems if Judge Wright orders disgorgement, freezing, etc., that's a bit like him skipping a trial and going straight to verdict. I think the real risk for Prenda is a large fine here (say, no more than $100,000), and a referral to a US Attorney's office. If Judge Wright asks a US Attorney to investigate Prenda, that's when the real penalties (including jail) could begin.

    (Oh, and of course being disbarred)

    So, with all that being said, my guess is there's not going to be a speedy FINAL resolution we're all hoping for, as no matter what Judge Wright orders, Prenda will appeal, and an investigation by the US Attorney's Office will take time.

  102. Blah  •  Mar 12, 2013 @7:41 am

    It's everything I imagined it would be and more! :D

  103. dogatemyhomework  •  Mar 12, 2013 @7:41 am

    The whole point of the shell companies is to deflect liability. Righthaven owes hundreds of thousands of dollars as a result of their losses in court. Had they simply been a law firm representing the owners of the copyrights then those owners would have been responsible for the money. This was sold, I am sure, as a "win win" situation for everybody…easy money, no liability.

    Same thing here. Had Prenda been able to portray AF Holdings as a legit company then any judgement against them would have been against the plaintiff, AF Holdings, not the lawyers.

  104. Andrew  •  Mar 12, 2013 @8:05 am

    It was one of the most remarkable hearings I have ever witnessed.

    One of the most remarkable? Has it been matched or surpassed? Do tell, Ken.

  105. Damon  •  Mar 12, 2013 @8:10 am

    Judge Wright: kicking ass and taking names. Wow, what a saga.

  106. Ygolonac  •  Mar 12, 2013 @8:39 am

    Aw, c'mon, the no-shows have a legitimate reason to have not appeared, time contraints.

    Do you know how *long* it takes to sort and burn that much evidential paperwork?

  107. Dan Weber  •  Mar 12, 2013 @8:41 am

    This was sold, I am sure, as a "win win" situation for everybody…easy money, no liability.

    I'm no corporate lawyer, or any kind of lawyer, but this situation seems especially ripe for piercing the corporate veil. Keeping assets separate is one of the key regards to keeping the corporation distinct and they seem to have . . . well, we can't really tell what they did. It's a giant mess.

  108. MattS  •  Mar 12, 2013 @9:34 am

    Dan Weber,

    "I'm no corporate lawyer, or any kind of lawyer, but this situation seems especially ripe for piercing the corporate veil. Keeping assets separate is one of the key regards to keeping the corporation distinct and they seem to have . . . well, we can't really tell what they did. It's a giant mess."

    I am not a lawyer at all, but it seems to me that the giant mess is quite deliberate. It makes piercing the corporate veil impractical and likely pointless. It's a completely typical hide the pea shell game only with corporate shells.

  109. Lulu  •  Mar 12, 2013 @9:35 am

    I was trying to find information on rulings regarding ISPs and subpoenas in copyright cases and landed on this site. I started at the beginning of the Prenda articles and read them all including the embedded links. This is fascinating stuff, and your editorial comments throughout were hilarious. This was as great entertainment as I've had in a long time. Kudos to Ken for excellent and well explained coverage of this case. I'll be checking back in hopes of more.

  110. mojo  •  Mar 12, 2013 @9:35 am

    A seriously pissed off Federal judge.

    BRRRRRRRRR…

  111. Nicholas Weaver  •  Mar 12, 2013 @9:47 am

    Isn't it just me, but at $3.5M a year, you'd think they could hire a lawyer to make sure, its, well, legal. There are plenty of ways they could have arranged to have a real client, legally, that would still allow them to play these games.

  112. JLA Girl  •  Mar 12, 2013 @10:00 am

    @ MattS

    I hope yesterday was a popcorn filled delight for Mr. Cooper. But reading Ken's report of what Steele was trying to pull . . . Well, Ken said it best:

    "By the end of the calls, there was a stunned silence in the courtroom, and I suspected that many spectators were sharing with me a deep sympathy for Mr. Cooper and an abiding sense of revulsion for John Steele."

    Kudos to all who helped get Mr. Cooper and his lawyer there and back. I find it interesting that Mr. Cooper got himself to L.A. but the Prenda principals were too busy.

  113. Thad  •  Mar 12, 2013 @10:14 am

    42 spectators on Douglas Adams's birthday? Perfect.

  114. En Passant  •  Mar 12, 2013 @10:15 am

    Dan Weber wrote Mar 12, 2013 @8:41 am:I'm no corporate lawyer, or any kind of lawyer, but this situation seems especially ripe for piercing the corporate veil.Damnit! Now you've started a copyrighted earworm that I can't get rid of:

    Grandpa died last week
    And now he's buried in the rocks,
    But everybody still talks about
    How badly they were shocked.
    But me, I expected it to happen,
    I knew he'd lost control
    When he built a fire on Main Street
    And shot it full of holes. …

  115. MattS  •  Mar 12, 2013 @10:38 am

    JLA Girl,

    While Mr. Steel's attempt at intimidation was certainly loathsome, I don't get the impression that it was anywhere near something that could be called successful.

  116. perlhaqr  •  Mar 12, 2013 @10:48 am

    So, I presume the "other" Alan Cooper was one of the people who did not appear?

  117. nlp  •  Mar 12, 2013 @10:55 am

    @Noah Callaway, they aren't legal text books, but Louis Nizer does an excellent job of describing courtroom procedures, basic law, and his own strategy in handling various cases. And some of the cases have moments that are just as awesome as those Ken describes. "My Life in Court" is Nizer's first book, and I've read it several times. A number of them are available through Amazon.

  118. jfb  •  Mar 12, 2013 @11:00 am

    Stupid question – could the obfuscation surrounding the shell companies be an attempt to evade tax obligations? Could that be why they're trying (and failing) to be so clever about it?

    How much more awesome would this story be if the IRS got involved?

  119. Kat  •  Mar 12, 2013 @11:53 am

    @ifb: Undoubtedly that was one of the benefits. So far everybody in this case has claimed that they were working pro-bono with only a few exceptions. A claim which I totally believe 100%. (/deadpan)

    I'd also be shocked if the IRS *didn't* get involved at some point in the future, given the claims that the money was supposedly being held in trust and transferred to other trusts–note the judge said he found it 'interesting' that this was supposedly occurring. Because, you see, this process would need for the lawyers receiving assets from the trust to be the official beneficiaries of the original trust. The process of transferring money from one trust to another is called decanting and it's basically splitting one trust into two or discontinuing one to establish another; the terms are often the same or highly similar and the grantors and beneficiaries don't change. And all of this is subject to certain taxes.

    After seeing the new information that has come out in the last few days, I highly doubt that there was actually a trust that was declared to the IRS. it seems like they were just depositing the money somewhere. They also weren't filing their (corporate) annual tax documentation according to the 300-page deposition. So, whoever has actually been getting the money is going to be in a lot of trouble for tax dodging, particularly since their shell companies were apparently misusing foreign tax havens. (At least that's the impression I get; St. Kitts & Nevis is a secrecy haven and that would probably apply to its financial institutions, but the new laws enacted in 2010 make it to where you need to file a declaration any time you have a foreign trust that exceeds $50k. Frankly, I realllllly doubt they did this if it's a foreign trust, so they're caught whether it's allegedly a U.S. trust or a St. Kitts and Nevis trust.)

    The IRS tends to move a bit slowly but as anyone facing an audit can attest, it is quite determined once it gets its teeth in. I would expect that once the details of the money trail come out in investigation (and I'd be shocked if there weren't an investigation at some point; big banks can get away with things like this, but a small group of private citizens will get cockroach stomped), the IRS will descend like a horde of locusts.

    It might take a while, but that's what I'm betting on.

  120. Grifter  •  Mar 12, 2013 @12:24 pm

    @Kat:

    "the IRS will descend like a horde of locusts."

    I have a picture in my head now of a million locusts in grey business suits with briefcases swarming these idiots, the cloud buzzing with a million repetitions of "And where are the receipts?" One of them is looking at his watch.

  121. Anonymous  •  Mar 12, 2013 @12:52 pm

    @MattS

    I believe the correct description for Steele's brilliant attempt to trick Cooper into settlement is "pathetisad."

  122. Daniel  •  Mar 12, 2013 @1:45 pm

    This definitely is a teachable moment. I can see this saga making its way into a Professional Responsibility Textbook in the near future. It is another reflection on the depths that the law school job crisis has reached. I can imagine a young and inexperienced Gibbs applying for this job with Prenda via a craigslist post, a shady interview, and then once he got the job, no mentorship, learning things on the fly and not really understanding the magnitude of what he got himself into. However, I dont think the State Bar tends to accept the Nuremberg Defense and his career may be over before it started.

  123. Ygolonac  •  Mar 12, 2013 @2:39 pm

    As for all the taxes, I'm sure Steele & Company will be shocked – *shocked* – to learn that "Alan Cooper" hasn't been filing his taxes properly.

    They'd also like to borrow a fan or three, it's getting really smoky in the offices.

  124. Hikaru Katayamma  •  Mar 12, 2013 @3:21 pm

    I must say that this has been the most entertaining thing I've read since the IBM vs SCO trials. Thanks for your coverage!!

  125. Noah Callaway  •  Mar 12, 2013 @3:21 pm

    @nlp Thanks! I much appreciate the suggestions.

  126. apauld  •  Mar 12, 2013 @3:31 pm

    Ken, did you ever figure out who it was that gave you the suspicious look in the attorney lounge?

  127. James Pollock  •  Mar 12, 2013 @4:08 pm

    "I am not a lawyer at all, but it seems to me that the giant mess is quite deliberate. It makes piercing the corporate veil impractical and likely pointless."

    The point of piercing the corporate veil is to hold the principals liable for things they did under corporate guise. It's not at all hard to impose. Once ordered, it creates funtimes (LOTS of funtimes) as the defendant can then be ordered to enumerate assets, under oath, including any transfers of ownership interests which can be attacked as fraudulent conveyances where appropriate
    Piercing the corporate veil makes complicated messes very simple, indeed.

  128. Steve Simmons  •  Mar 12, 2013 @4:28 pm

    On one hand, I want Judge Wright to rule today. On the other, I want to see the result of his long, loving, well-honed ruling. Very, very, well-honed.

    Then I want to see him wield it.

  129. MattS  •  Mar 12, 2013 @4:36 pm

    James Pollock,

    The point of the mess is to make it ultimately impossible to determine who the principles are. You can't hold the principles liable if you can't determine their identities.

    I am not specifically claiming that Prenda Law has made enough of a mess to be successful in this case, but that is the idea behind it.

  130. MattS  •  Mar 12, 2013 @4:41 pm

    I wonder if it would be possible to create a set of recursive shell companies for which their are no principles.

    Shell A is wholly owned subsidiary of shell B
    Shell B is a wholly owned subsidiary of shell C
    Shell C is a wholly owned subsidiary of shell D
    Shell D is a wholly owned subsidiary of shell A

    Hey, wait a second….

  131. Matthew Cline  •  Mar 12, 2013 @4:54 pm

    @Kat:

    So far everybody in this case has claimed that they were working pro-bono with only a few exceptions.

    Alpha Law Firm (of which Hansmeier is a partner) isn't paid directly by AF Holdings, but gets reimbursed by Prenda. Could that reimbursement also include Hansmeier's salary?

    @Hikaru Katayamma:

    I must say that this has been the most entertaining thing I've read since the IBM vs SCO trials.

    If it weren't for the fact that it was causing problems for other people, I'd want this thing to drag on a lot longer, just so it could generate more legaltainment.

  132. Matthew Cline  •  Mar 12, 2013 @4:56 pm

    On the other, I want to see the result of his long, loving, well-honed ruling. Very, very, well-honed.

    Then I want to see him wield it.

    Legal Ruling of Sharpness +3 (+11 vs scumbags)

  133. That Anonymous Coward  •  Mar 12, 2013 @5:32 pm

    @Myk – I laid out all of the tools required to find out who is still seeding those files now. I am unwilling, without a Judge telling me to do it, to engage in further investigation into the file. It would be nice to see who is still seeding a file that I can find no pointers to on the interwebs. Bonus points if their client is keeping logs for how long they've been doing it.

    There is a copy of a contract used by one of the 'German' firms, SJD has it linked IIRC, where they clearly get authorized to run a honeypot. But as people in these cases rarely get to argue the case on its merits in court these facts don't come out.
    Evan 'Staggering Chutzpah' Stone was gathering IP addresses using an off the shelf BT client. This means as he (or Mr. Green (sp)) was observing and downloading he was also uploading and contributing to the commission of the infringement… and doing many other things of 'questionable' nature.

    @G WHERE IS MY PONY!!!!!!!!!!!!!
    I thought it was AFACT vs iiNet where that tidbit came out. I get so confused.

    Oh and for a bonus spot in your bingo card Dtecnet is the company that is sending out DMCA letters demanding Google delist pages on HBO.com has having pirated HBO content… oh and they are the tech that is running 6 Strikes in the US. They can't tell if the things on the clients own website is infringing… and they get to boldly accuse people with a track record like that.

  134. That Anonymous Coward  •  Mar 12, 2013 @5:34 pm

    @Ken – When I emailed you did you ever imagine it would end up like this? *giggle*

  135. George William Herbert  •  Mar 12, 2013 @6:17 pm

    MattS:
    I wonder if it would be possible to create a set of recursive shell companies for which their are no principles.
    Shell A is wholly owned subsidiary of shell B
    Shell B is a wholly owned subsidiary of shell C
    Shell C is a wholly owned subsidiary of shell D
    Shell D is a wholly owned subsidiary of shell A
    Hey, wait a second….

    Manfred Manx in Charlie Stross' Accelerando did exactly that to give away intellectual property without being taxed for it, in a totalitarian tax regime where giving things away was taxed into oblivion. Attempts to pierce the corporate veil became extreme. It was well known he was "behind it", but he had the varioius shells continuously automatically exchanging ownership of each other and of the various properties, so that any discovery was obsolete by the time someone could attempt to act on it.

  136. G Thompson  •  Mar 12, 2013 @6:34 pm

    @TAC: Nope was always Roadshow Films Pty Ltd v iiNet Limited in all three major parts (Federal court, Federal Court of Appeals and then the final High Court Case) and that tidbit is found in the linked case starting at 319 under "Who makes the communication?".

    Roadshow was the first listed Applicant of the long list of 34 so they became the named party. AFACT was the industry body that the 34 applicants belonged too that financed the case, covered the public relations side, and ultimately had to pay out after losing the case in the HCA. So yes it was really AFACT who initiated and pushed for the whole case to be started and sent all the way to the High Court, though they themselves have no actual ownership of the copyrights in the allegedly infringed works then they had no standing to be applicants so Roadshow it was.

    As for your pony! My caption for this imagehttp://geekhideout.net/post/17019771846 says it all I think ;)

  137. Raul  •  Mar 12, 2013 @7:05 pm

    I've tweeted about this previously but it is important to understand why Steele withdrew his complaint against Godfread, Cooper, fightcopyrighttrolls.com and dietrolldie.com. Currently limited to my iPad I cannot link but last year Attorney Syfert filed a complaint with the FL Bar accusing Steele of holding himself out as a licensed FL attorney when, of course, he possessed no such license. The matter was settled with Steele signing an affidavit swearing he would NEVER hold himself out as a licensed FL attorney, SJD did a post about this over at fightcopyrighttrolls.com. Returning to the Steele complaint, he refers to himself as "undersigned counsel" and requests "attorneys fees" as part of his damages. So you tell me, is the King of Douchebags holding himself out as a licensed FL attorney? Might this be the reason, after seeing my comments, he withdrew the complaint? Should this be reported to the FL Bar?

  138. Delvan  •  Mar 12, 2013 @7:29 pm

    @TAC: I can think of a way that might do that without committing any infringement in the process. If that's the issue for waiting on a judge to request it, let me know. Now that they know they're up the fecal creek, it might be better to grab some recon while they've still left the faucet running. dnevill is the name, gmail is the place.

  139. Anonymous  •  Mar 12, 2013 @7:30 pm

    Another interesting piece of information about Prenda is that for several months at the end of last year, their corporate registration was not in good standing with the State of Illinois. IANAL but a bit of searching suggested that that state of affairs potentially opens anyone acting on behalf of such a corporation personally liable for any wrongdoing on the corporations part, and getting back in good standing does not retroactively shield the company's officers and employees from liability.

    I'd be curious what the legal experts here think of that, if it could be an issue if any of Gibbs' misconduct took place during that period, to say nothing of the conduct of Steele, Hansmeier, Duffy, Lutz, the shells, etc., etc., etc.

    I guess it's not too hard to predict at this point the veil may be pierced and their whole mess dismantled, but it is another great example of the carelessness that rules the day over there.

  140. AlphaCentauri  •  Mar 12, 2013 @10:39 pm

    I missed it — from whom did the imaginary Alan Cooper purchase the copyrights, and has anyone contacted that entity to find out if the sale actually occurred?

  141. RJ  •  Mar 12, 2013 @11:45 pm

    Oh, and Brett Gibbs has been rated by the lawyer rating site "Avvo", whose motto is "Have no legal fear". 3 stars for experience, 1 star for industry recognition, and 5 stars for professional conduct. Gives me lots of confidence in the site.

  142. Sharon  •  Mar 13, 2013 @12:09 am

    @AlphaCentauri -

    The Copyright Assignment Agreement included in the attachments for the Hansmeier deposition lists "Raymond Rogers" signing for "Heartbreaker Digital LLC" "Alan Cooper" signing for "AF Holdings LLC". The video was "Popular Demand". It's dated December 2011, IIRC. In the deposition, he said they'd contacted Raymond who said everything was cool.

    The PDF had lots of documents in it, including AVN articles mentioning Heartbreaker Films. I didn't read it thoroughly enough to say definitely yes or no if there was another Alan-Cooper assignment where he represented Ingenity … the other company he was listed as CEO of at one time or another. I think. It all sort of blurs together at this hour, and that night after reading the delicious 291-page depo I wasn't really in the mood to put the same amount of attention to the PDF of attachments and references.

  143. AlphaCentauri  •  Mar 13, 2013 @5:47 am

    Oh, so a Prenda guy provided the information under oath.

    And they believed him? ;)

  144. dbf  •  Mar 13, 2013 @6:42 am

    Very nice article Ken. thanks

  145. Anon  •  Mar 13, 2013 @7:08 am

    Hmmm. Wonder what good old Judge Wright is up to today…

  146. Kat  •  Mar 13, 2013 @8:51 am

    @Matthew Cline: According to his testimony in that monster deposition, all Alpha Law receives are reimbursements for legal expenses from Prenda's trust accounts. He says that around p. 100, then on p. 109, he says that includes paying the lawyers. On p. 112, he says that it's a percentage of the settlements. So, from that answer, it would seem that he does get paid by Prenda.

    But then, on p. 113, he turns around and says Alpha Law didn't receive a contingency fee or compensation for the cases it worked. He repeats this at the bottom of the page and on the next pages as well.

    Schrodinger's payments! D:

  147. Yetty  •  Mar 13, 2013 @9:03 am

    How would this impact past, present and future settlements.

  148. Elaine  •  Mar 13, 2013 @9:36 am

    As a newcomer to the Prenda thread, and a layperson, this is so fascinating. Thanks for your reportage.

    My only comment is I think that Prenda Law definitely picked the right name:
    http://www.latinwordlist.com/latin-words/prenda-24169265.htm

  149. Kevin  •  Mar 13, 2013 @10:15 am

    @RJ – Unfortunately, it looks like that lawyer rating site requires you to be a (former) client in order to rate an attorney. Meaning that if you have no actual clients, then nobody can ever report you for misconduct! Brilliant!

  150. Anonymous  •  Mar 13, 2013 @12:31 pm

    Transcripts of Steele's voicemail messages to Cooper should hit RECAP soon, and you can judge him by his own words:

    ALAN, THIS IS JOHN STEELE AGAIN.

    YOU HAVE NOT RESPONDED OR CONTACTED ME REGARDING LITIGATION YOU'RE INVOLVED IN. I KNOW YOU'VE BEEN SERVED WITH A THIRD LAWSUIT. AND THERE ARE MORE COMING. DON'T WORRY ABOUT THAT.

    WELL, OBVIOUSLY, IF I DON'T HEAR FROM YOU, I'M GOING TO START FILING FOR CERTAIN DEFAULT MOTIONS AND START GETTING RELIEF THAT WAY.

    I CAN ASSURE YOU THAT JUST IGNORING LEGAL MATTERS, IT'S NOT GOING TO GO AWAY. I CAN GUARANTEE YOU, I'M NOT GOING AWAY.

    SO I HIGHLY RECOMMEND YOU, AT LEAST, YOU KNOW, FOLLOW THE RULES OF MINNESOTA, ILLINOIS, FLORIDA AND SOME OTHER STATES' SOON CIVIL PROCEDURE BECAUSE, OTHERWISE, YOUR LIFE IS GOING TO GET REALLY COMPLICATED.

    AND I'M SAYING THIS AS A FRIEND, AS WELL AS OPPOSING COUNSEL. SO YOU CAN REACH ME IF YOU'D LIKE TO DISCUSS SETTING UP A DEPOSITION AND VARIOUS OTHER DISCOVERIES, AND, OF COURSE, ANY SETTLEMENT DISCUSSIONS YOU'D LIKE TO DO.

    ALL RIGHT. YOU HAVE THE NUMBER. BYE.

    Settlement discussions! Doesn't this guy have any other script?

  151. DanR  •  Mar 13, 2013 @12:31 pm

    @BradHicks:

    There is nothing "illegal" or prejudicial about Judge Wright allowing an attorney in the audience to be heard during a hearing. And, contrary to Ken's experience, I've seen it happen a few times. Indeed, it looks like that's what happened with AT&T's and Verizon's lawyers as well as with Godfread's lawyer.

    There's definitely no reason Judge Wright should have "sanctioned" Godfread's lawyer for speaking- unless I'm misreading this, Judge Wright gave the man permission to speak. If you stand up and respectfully ask a federal judge if you may be heard, and explain who you are, and if the judge then grants you permission to speak, then everything is procedurally fine. The Judge has inherent authority to manage his own courtroom, and that's what he did. No harm, no foul, and certainly no "prejudice."

  152. Anonymous  •  Mar 13, 2013 @12:33 pm

    Oh, and bonus points to the court reporter for getting "your" and "you're" straight. This was something John Steele never managed when he was the one typing his threats.

  153. doeknob  •  Mar 13, 2013 @12:37 pm

    You know, it is funny. Tappan, a Prenda local affiliate attorney in MI recently filed an opposition to a motion to stay the case until issues in CA were resolved.

    The funny thing…Tappan uses Gibbs' e-mail address in the signature block. The same Gibbs who supposedly said under oath that he was leaving Prenda.

    http://www.scribd.com/doc/130206909/Doc20-MTS

  154. Ken  •  Mar 13, 2013 @12:38 pm

    @BradHicks:

    Sorry, I missed this before:

    Wait, wait, wait … back up a second!? Gibbs testified, Godfread's own lawyer stood up IN THE AUDIENCE? and FROM THE AUDIENCE? called Gibbs a liar, and the judge not only didn't sanction him for this, let him do it, let it become part of the record? No way. You have to be remembering this wrong, right? Because that's … is that even legal? If it is even legal, has any judge in the last hundred years let his courtroom be hijacked like that in the middle of a hearing? Isn't the procedure supposed to be him filing that as an affidavit afterwards, not jumping up and interrupting the proceeding?

    Wow. My mind is blown.

    (The next place my mind went was, "well, if Prenda wants to establish grounds for appeal, if they need more evidence that the judge is prejudiced against them, didn't they just find the smoking gun?" I mean, if someone with only a peripheral involvement in the case had jumped up in the audience and called The Real Alan Cooper a liar, would the judge have tolerated that?)

    "Let it become part of the record" is a bit misleading. The lawyer wasn't under oath. It's not really evidence. It Judge Wright relied on it in a ruling, then that might be error — though unlikely prejudicial error, given the weight of the evidence. But it wouldn't be "bias," either, for the reasons set forth in the order denying the motion to disqualify Judge Wright.

  155. Anonymous  •  Mar 13, 2013 @12:46 pm

    @doeknob

    Great catch! The evil, defamous anti-Prenda blog community has been keeping and eye on this stuff, and in a few cases they have actually filed revised documents without Gibbs' email immediately (as in one day) after someone made a post drawing attention to it. Expect to see the same thing here, but I think they are well past the point of such cheap tricks.

  156. doeknob  •  Mar 13, 2013 @12:54 pm

    I suppose I should have mentioned that the document was filed BEFORE Gibb's said that he left. But only just so. The document was filed on 3/7.

  157. Anonymous  •  Mar 13, 2013 @12:57 pm

    @doeknob

    I believe that under oath, Gibbs said he decided to leave Prenda and informed them of his decision at the end of last year, although he did not begin desperately withdrawing as counsel of record in their cases until this hearing began to look Very Bad.

    Of course, the actual paper trail appears to be far more complicated, and then there's the issue of not being able to trust anything they say, under any circumstances, ever.

  158. Dana West  •  Mar 13, 2013 @4:28 pm

    Is it possible that Prenda might have posted their porn titles to bit-torrent themselves? I'd be curious to see a comparison of the dates they acquired the licenses and dates they first appeared on the bit-torrent websites.

  159. doeknob  •  Mar 14, 2013 @12:01 pm
  160. D  •  Mar 14, 2013 @12:31 pm

    BREAKING NEWS!!!!!

    Check out Judge Wright's Order issued just a little while ago – it's document 86 in the case (2:12cv8333). I don't have a public link for it; sorry.

    Read and discuss amongst yourselves.

  161. Ken  •  Mar 14, 2013 @12:33 pm

    @D

    Dude. Too slow.

  162. Delvan  •  Mar 14, 2013 @1:48 pm

    Dana: That's an excellent question. :)

  163. That Anonymous Coward  •  Mar 14, 2013 @9:06 pm

    @Dana – No that would never happen. I am not aware of there being a mass Doe lawsuit filed for a movie that was never released at retai…. nevermind.
    Was not a Prenda et al. case but it happened.

  164. That Anonymous Coward  •  Mar 15, 2013 @1:19 am

    @Delvan – IKR… its all spooky and stuff

  165. Mark  •  Apr 9, 2013 @12:06 am

    Thank very much for your updates on this story, and even more so for your ability to tell the story in a way that is both informative and entertaining.

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