As Prenda's Next Big Day Approaches, What Could Judge Wright Do?

Law

All of our coverage of Prenda Law is collected here.

Prenda-watchers know that United States District Court Judge Otis D. Wright II has ordered multiple Prenda Law lawyers and clients to appear before him on April 2, 2013. As a reminder, Judge Wright's order required these people and entities to appear for the following purposes:

Thus, the Court amends its February 7, 2013 Order to Show Cause (ECF No. 48) to include sanctions against the persons and entities in subparagraphs a–m below:

a) John Steele, of Steele Hansmeier PLLC, Prenda Law, Inc., and/or Livewire Holdings LLC;

b) Paul Hansmeier, of Steele Hansmeier PLLC and/or Livewire Holdings LLC;

c) Paul Duffy, of Prenda Law, Inc.;

d) Angela Van Den Hemel, of Prenda Law, Inc.;

e) Mark Lutz, of Prenda Law, Inc., AF Holdings LLC and/or Ingenuity 13 LLC;

f) Alan Cooper, of AF Holdings LLC;

g) Peter Hansemeier, of 6881 Forensics, LLC;

h) Prenda Law, Inc.;

i) Livewire Holdings LLC;

j) Steele Hansmeier PLLC;

k) AF Holdings LLC;

l) Ingenuity 13 LLC; and

m) 6881 Forensics, LLC.

These persons and entities are ORDERED to appear on March 29, 2013, at 10:30 a.m., 1 TO SHOW CAUSE for the following:

1) Why they should not be sanctioned for their participation, direction, and execution of the acts described in the Court’s February 7, 2013 Order to Show Cause;

2) Why they should not be sanctioned for failing to notify the Court of all parties that have a financial interest in the outcome of litigation;

3) Why they should not be sanctioned for defrauding the Court by misrepresenting the nature and relationship of the individuals and entities in subparagraphs a–m above;

4) Why John Steele and Paul Hansmeier should not be sanctioned for failing to make a pro hac vice appearance before the Court, given their involvement as “senior attorneys” in the cases; and

5) Why the individuals in subparagraphs a–g above should not be sanctioned for contravening the Court’s March 5, 2013 Order (ECF No. 66) and failing to appear on March 11, 2013.

Judge Wright's order refers back to his February 7, 2013 Order to Show Cause. That order described the conduct that concerned him and included this ominous warning:

Based on the evidence presented at the March 11, 2013 hearing, the Court will consider whether sanctions are appropriate, and if so, determine the proper punishment. This may include a monetary fine, incarceration, or other sanctions sufficient to deter future misconduct. Failure by Mr. Gibbs to appear will result in the automatic imposition of sanctions along with the immediate issuance of a bench warrant for contempt.

As April 2 fast approaches, you might be asking yourself: what sorts of tools does Judge Wright have at his disposal if he finds that Prenda Law attorneys or clients have committed misconduct?

Judge Wright has many tools, and broad power, but that power is not unlimited. This post reviews some of the tools at his disposal.

Part I: Things Judge Wright Could Ask Others To Do

First up, as a federal judge, Judge Wright has vast influence over others who might take action against Prenda Law lawyers, principals, and entities.

State Bars: If Judge Wright believes that any attorney affiliated with Prenda Law has committed misconduct, he could refer the matter to the state bar of each state in which that attorney is admitted. State Bars tend to be underfunded, understaffed, and underpowered, at least compared to the ubiquity and mendacity of modern lawyers. There are too many reports of misconduct and too few people to investigate them. But referrals from judges tend to move to the front of the line. If Judge Wright makes a referral couched in the sort of blunt language he has uttered to date, he'll probably inspire immediate and vigorous State Bar investigations of the named lawyers. Such investigations can lead to state bar proceedings that might eventually result in probation, suspension, or disbarment.

United States District Court and Circuit Court Bars: Membership in a state bar doesn't automatically confer the right to appear in federal court in that state. Instead, most of the 94 federal judicial districts (including the United States District Court for the Central District of California, where Judge Wright sits) have their own process for admitting lawyers. So do the 12 circuits that hear appeals. Most of their courts have their own system for addressing attorney misconduct. You can be suspended or disbarred from the bar of a federal district or circuit even if you aren't disciplined by your state bar. For anyone whose practice focuses on federal court, that would be catastrophic. Local Rule 83-3 of the Central District of California, for instance, provides for a disciplinary process. If Judge Wright refers his conclusions to each district and circuit where the Prenda Law attorneys are admitted, they will probably face investigations of their conduct, and could face suspension or disbarment from practice before those courts.

United States Attorney's Office: Both Judge Wright's written orders and his comments during the March 11 hearing suggest he suspects that Prenda Law attorneys and principals are involved in fraud on the court — including, but not limited to, fraudulent misuse of Alan Cooper's identity and fraudulent misrepresentation of the true ownership and control of the Prenda plaintiff entities. Based on that conclusion, he could refer the case to the U.S. Attorney's Office — just 11 floors above him — for a criminal investigation. That would be as easy as picking up the phone and calling the Chief of the Criminal Division.

To be frank, the sort of fraud that Judge Wright apparently suspects — the sort of fraud that Prenda Law foes have alleged — is not the sort of fraud that would normally attract the attention of federal prosecutors. The resources of the U.S. Attorneys' Offices across the country are limited, and after 9/11 they've been diverted away from white collar crime in favor of terrorism, drugs, guns, gangs, and immigration — with occasional objectionable diversions into "computer fraud." The allegations against Prenda Law amount to penny-ante stuff compared to the high-dollar fraud that usually concerns federal prosecutors. But a direct referral from a federal judge carries very substantial weight. If Judge Wright refers the case, the U.S. Attorney's Office will allocate resources to start a grand jury investigation.

What would they investigate? Well, Judge Wright's orders and comments suggest that he is entertaining theories that Prenda Law attorneys (1) misappropriated Alan Cooper's identity, (2) created entities like AF Holdings and Ingenuity 13 to conceal their own financial interests in the cases they brought, and (3) lied to and concealed facts from both defendants and federal courts. Any investigation might focus on whether Prenda Law's attorneys engaged in conspiracy to violate federal law, false statements to the federal government, mail fraud, wire fraud, obstruction of justice, subornation of perjury, and — if the feds are in a particularly bring-out-the-gimp mood — money laundering. Moreover, unlike state bar and federal bar remedies — which by necessity only threaten consequences to lawyers — a criminal investigation could focus on non-lawyers like Mark Lutz and even on non-human entities like Prenda Law, AF Holdings, and Ingenuity 13. The feds are quite adept at flipping lower-level figures in an investigation against higher-ups. Some of the figures in this case seem ripe for that treatment.

So: merely by sending a letter or even picking up the phone, Judge Wright could easily generate state and federal bar investigations against Prenda Law's lawyers and a federal criminal investigation of everyone involved.

But Judge Wright has his own powers, too.

Part II: Things Judge Wright Could Do Himself

As a district court judge, Judge Wright has numerous tools with which he can address misconduct before him, including Rule 11 of the Federal Rules of Civil Procedure, federal statute, his inherent authority, local rules, and the contempt power. Each tool has its own limits.

Rule 11: Rule 11 of the Federal Rules of Civil Procedure requires that every pleading filed in federal court be signed by a lawyer. By signing, the lawyer is representing to the court that the document isn't filed for an improper purpose (like harassment or delay) and that its factual and legal allegations have an adequate basis. Whether claims in a document have an adequate basis is tested not based on the attorney's subjective intent, but on the objective reasonableness of the claims. A party may file a motion alleging a Rule 11 violation against another party (a regrettably involved process) or the judge may make an inquiry on his or her own initiative. A judge finding a Rule 11 violation may impose sanctions against attorneys or, in some cases, parties; those sanctions can be monetary or non-monetary, and can be designed to deter similar conduct.

However, Rule 11 has important limits. First, it applies only to documents filed by an attorney in federal court, not to out-of-court conduct. Second, under Rule 11(c)(5)(B), because Prenda dismissed this particular case before Judge Wright issued his February 7, 2013 Order to Show Cause, he can't impose monetary sanctions under Rule 11 — though he can impose monetary sanctions with other tools discussed below, and can impose them in any cases in which he issued his OSC before Prenda dismissed. Third, although Judge Wright can probably impose Rule 11 sanctions against Prenda Law attorneys and parties who did not sign documents filed in court but directed them to be filed (according to Brett Gibbs and Paul Hansmeier's testimony, that would include John Steele and Mark Lutz, for instance), the law on that point is a bit cloudy.

So: Rule 11 may not be the best tool for Judge Wright here.

Title 28, United States Code, Section 1927: 28 U.S.C. section 1927 gives federal judges another tool for imposing sanctions:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

This statute is even more limited than Rule 11. First, it only applies to conduct that prolongs litigation and increases the other side's attorney fees, not to pre-litigation conduct or conduct that doesn't have the effect of prolonging litigation. Second, courts are split on whether it applies to attorneys other than counsel of record in the case. Third, sanctions are limited to the amount of fees caused by the other wrongful conduct.

Inherent Authority: Federal judges have inherent authority to sanction bad faith conduct before them or violation of their orders. That authority extends to conduct that can be punished under Rule 11 or Section 1927, and beyond to other conduct. A judge's inherent authority is more flexible in that it isn't restricted by all of Rule 11's procedural limits (for instance, it can be wielded even after a plaintiff has dismissed a case) and less flexible in that it only applies to bad faith conduct — that is, conduct that not merely objectively unreasonable, but subjectively done with bad intent. Moreover, many courts have held that their inherent power can be used to sanction "fraud on the court" — the phrase Judge Wright has invoked repeatedly. A judge's inherent authority reaches beyond the lawyer appearing in court to lawyers or parties who direct the litigation, and can include conduct outside of court — though it can't include conduct in another district.

Judge Wright's inherent authority is probably the most flexible and effective tool he has.

Local Rules: Local Rules — rules enacted by the judges of a particular district — can also confer sanction power. For instance, Local Rule 83-7 permits sanctions for violations of the rules that apply to proceedings in the Central District of California where Judge Wright sits. Those local rules require, for instance, adherence to the California Rules of Professional Conduct. However, this power is somewhat limited — the local rules can't confer sanctions power broader than statutes and the Federal Rules of Civil Procedure allow, and a court must make a finding of intentional or grossly negligent violation of rules to support sanctions. Because the local rules incorporate the California Rules of Professional Conduct — including prohibitions on fraud — Rule 83-3 may be a useful tool.

Contempt Power: Federal judges also have the power to hold people in contempt — based both on their inherent power and on federal statute. Contempt can include fines or imprisonment. Contempt is complicated, and this is a very abbreviated description. Contempt is divided into two types — civil contempt and criminal contempt. Often, it's not perfectly clear whether a judge is invoking civil contempt or criminal contempt.

Civil contempt is an exercise of the contempt power intended to coerce (as when a judge threatens to fine someone $100 a day until they comply with an order) or to compensate (as when a judge holds a misbehaving party in contempt and orders them to pay the attorney fees incurred by the opposing party as a result of the misconduct). Criminal contempt, on the other hand, is an exercise of the power to punish or deter.

The contempt power isn't as broad as the sanctions power. Contempt coerces obedience to a court order or punishes disobedience; it doesn't address misconduct in the abstract. It requires proof of an unambiguous order and knowing disobedience of it. Here, if Judge Wright thinks that Prenda Law deliberately violated his discovery order by continuing to seek the identity of downloaders after he ordered them not to — or if he thinks they improperly defied his order to appear on March 11 — he might invoke the contempt power. But he couldn't invoke it, for instance, to punish what he sees as improper failure to disclose financial interests or notify the court of related cases.

Moreover, invocation of the contempt power requires more due process than invocation of the sanction power. A judge may summarily invoke the contempt power summarily for direct conduct that appears immediately before him or her — as in the case of an attorney who swears at the judge in court. Otherwise, the judge invoking criminal contempt power over indirect conduct outside of court must give notice, an independent prosecutor, notice of the charges, counsel, and the right to confront witnesses. Invocation of the civil contempt power for indirect conduct outside of court requires only notice and an opportunity to be heard — though in some cases, where extremely complex factfinding is necessary, it may require procedures more like criminal contempt.

I have dramatically oversimplified Judge Wright's contempt power. Suffice it to say that he could probably hold attorneys and parties in civil contempt at the April 2 hearing if he finds a knowing violation of one of his orders. He can't find them in criminal contempt without further proceedings.

Predictions?

How will Judge Wright wield these powers?

If I were a betting man, I'd bet that he won't make a ruling on April 2. Rather, I suspect he'll offer a carefully-worded order with findings of fact. If the participants in the April 2 hearing fail to answer his questions to his satisfaction, I think he will make referrals to state and federal bars. I suspect he'll also, at a minimum, sanction the Prenda Law attorneys under his inherent authority. Beyond that? I wouldn't guess.

Stay tuned.

  1. that date was later changed to April 2  

Last 5 posts by Ken White

97 Comments

92 Comments

  1. Jim Tyre  •  Mar 31, 2013 @9:59 pm

    Ken,

    If you were a betting man, how would you set the odds on whether Steele, (Paul) Hansmeier and Duffy (1) will appear and (2) will testify without invoking the Fifth Amendment?

  2. Burk  •  Mar 31, 2013 @10:16 pm

    Thanks, Ken – this is a fantastic program/scorecard for non-attorneys. Your coverage of the Prenda saga has made for fascinating reading, and I learn something new with each post.

  3. G Thompson  •  Mar 31, 2013 @10:39 pm

    Thanks for that Ken it's illuminating to see that the inherent, specific, and referral powers of your Judges are very similar to our own.

    Quick questions though, with your suggestion of referral to the AG department, would that also include a referral to other authorities that include but are not limited to the IRS which has a bit more, how should I put it, investigative and due process leeway.

    How is any of the above affected if the entities summoned appear but instead "plead the 5th" or however it is used due to the inherent problems of whatever they now say more than likely could incriminate them in any further investigations by outside parties?

  4. Matthew Cline  •  Mar 31, 2013 @10:48 pm

    Are any of these options mutually exclusive, or could the judge use all of them at once?

  5. Mark  •  Apr 1, 2013 @12:04 am

    "— if the feds are in a particularly bring-out-the-gimp mood —"

    Now that my keyboard has dried out from the mouthful of water I laughed through, thank you, Ken, thank you very much for that imagery. Which, and this likely implies something about my mental health, inspired this:

    Cooper: You okay?

    Wright: Naw man. I'm pretty f-n' far from okay.

    Cooper: What now?

    Wright: What now? Let me tell you what now. I'ma call a coupla hard, pipe-hittin' 'torneys, who'll go to work on the homes here with sanctions and a bit of "Murum aries attigit". You hear me talkin', Prenda-boy? I ain't through with you by a damn sight. I'ma get judicial on your ass.

    Cooper: I meant what now between me and you?

    Wright: Oh, that what now. I tell you what now between me and you. There is no me and you. Not no more.

  6. EH  •  Apr 1, 2013 @12:16 am

    I love it when you get all Volokhy.

  7. That Anonymous Coward  •  Apr 1, 2013 @12:28 am

    Judge Wright uses Justice… It's Super Effective!

    There is plenty of pain to be passed out and one can only hope it keeps spreading.

  8. xbradtc  •  Apr 1, 2013 @1:23 am

    Can they even plead the Fifth? After all, they're called before the court as officers of the court as a result of their own filings before the court.

  9. Rob  •  Apr 1, 2013 @2:09 am

    A judge may summarily invoke the contempt power summarily

    But can he redundantly invoke the contempt power redundantly?

  10. Pedr  •  Apr 1, 2013 @2:35 am

    Does the judge have a clerk or legal advisor to help him work out what his options are and the factors he should take into account when deciding what to do? I haven't seen an indication that he's asked any lawyers to address these issues in court, so what scope is there for providing this kind of guidance?

    He may not mind if he gets the law wrong and makes orders he doesn't have power to our which are outside his discretion, reasoning that the affected parties could probably get that fixed on appeal, but as it seems rather complex l hope he has some way to get a third party's evaluation of what the legal position is.

  11. Raul  •  Apr 1, 2013 @3:51 am

    Thanks for nicely laying out Judgi Wright's options and their import. I am still trying to sort out whether "senior lawyers" are better off dodging the hearing or attending, neither option is attractive from their perspective.

  12. LW  •  Apr 1, 2013 @4:24 am

    "Does the judge have a clerk or legal advisor to help him work out what his options are and the factors he should take into account when deciding what to do?"

    I doubt he needs help, but I like to imagine some nice chats with other federal judges around the country who also have Prenda cases in front of them.

  13. James  •  Apr 1, 2013 @4:58 am

    Judge Wright was seen out back of the woodshed this weekend cutting himself a switch. Somebody gonna have a sore backside come Tuesday afternoon.

  14. Another anonymous NAL  •  Apr 1, 2013 @5:05 am

    Thanks for the update. Never have I seen the contents of a can of whoopa$$ described in such detail and so eloquently, before opening…

  15. AlphaCentauri  •  Apr 1, 2013 @5:29 am

    @James, I think he's gone for the full treatment: He ordered them to go out and cut the switch and bring it to him.

  16. Bear  •  Apr 1, 2013 @5:47 am

    Aside: I checked Popehat this 4/1 AM and spotted a Prenda post. My first thought was, "Cool."

    My second thought was… "Wait. This is April Fool's Day. How am I gonna tell a hilarious spoof from a real Prenda report without PACER access?"

    My third thought was, "Oh. So that's why Judge Wright scheduled the hearing for the second of April."

  17. Joe Pullen  •  Apr 1, 2013 @5:58 am

    In my neck of the woods we call this 'takin' em out back to the hose rack".

    So, is it wrong for me to look forward to tommorrow with such glee?

  18. Clark  •  Apr 1, 2013 @6:13 am

    > Inherent Authority: Federal judges have inherent authority to sanction bad faith conduct before them or violation of their orders.

    What's not to love about one branch of government awarding new powers and authorities to itself without the people or the other branches of the government approving?

    Seems like a great idea with no possibility of abuse.

  19. Clark  •  Apr 1, 2013 @6:14 am

    @Joe Pullen

    > is it wrong for me to look forward to tommorrow with such glee?

    One individual as judge, jury, and executioner? No, nothing wrong about cheering on the State acting that way. Knock yourself out.

  20. That Anonymous Coward  •  Apr 1, 2013 @6:34 am

    @Clark – "One individual as judge, jury, and executioner? No, nothing wrong about cheering on the State acting that way. Knock yourself out."

    So in other words operating like Prenda was operating?

    We saw an IP assigned to you, this means you did it!
    You should pay us to avoid the shame.
    We are going to robocall you and send scary letters until you pay us.
    Oh you want your day in court?
    Oh crap countersuit?
    Here have a stack of money and stop bothering us.

  21. dohdoe  •  Apr 1, 2013 @7:13 am

    "The allegations against Prenda Law amount to penny-ante stuff compared to the high-dollar fraud that usually concerns federal prosecutors."

    I'm not trying to be dramatic here, but Prenda has engaged in actions that, if true, undermine the judicial process. Especially the fact that they were allowed to continue for so long without a single judge asking questions or stopping to listen to doe defender's.

  22. That Anonymous Coward  •  Apr 1, 2013 @7:30 am

    @dohdoe – Bankers knowingly sold bad stuff and bet against the people they sold them to, and there wasn't enough "evidence" of wrong doing to go after them when they destroyed the world financial markets.

    Paypal was hit with a DDOS that slowed down a small portion of their website but nothing mission critical, and there were arrests and manhunts (and still are) around the globe.

    What gets their attention often seems to reflect how rich and powerful some of the players are.

  23. Clark  •  Apr 1, 2013 @7:38 am

    @That Anonymous Coward

    @Clark – "One individual as judge, jury, and executioner? No, nothing wrong about cheering on the State acting that way. Knock yourself out."

    So in other words operating like Prenda was operating?

    Like Prenda is accused of operating, yes.

    So, what's your point? Unilateral action without checks and balances is OK, but only when it's done with the full weight of the US government behind you?

    I find your V-for-Vendetta icon somewhat amusing in that context.

  24. Trebuchet  •  Apr 1, 2013 @8:14 am

    I am SO looking forward to tomorrow!

    Gotta wonder if a couple of the lower rungs of the Prenda ladder, like Gibbs and Van Den Hemel, aren't already cooperating with court. That would seem like the easiest way out of this tarbaby for them.

  25. AlanF  •  Apr 1, 2013 @8:27 am

    I've got tomorrow off, and you can bet that I'll be in the courtroom.

    My bet is that the major characters in this soap opera (Steele, Hansmeier, Duffey, Lutz, etc.) will be no-shows. Thus, the proceedings will be rather brief and a pissed-off judge Wright will go back to his chambers to draft some pointed orders.

    I base this not on any inside knowledge, but simply on the characters' past avoidance of answering any hard questions.

  26. Pierre  •  Apr 1, 2013 @8:29 am

    @Clark:

    One individual as judge, jury, and executioner? No, nothing wrong about cheering on the State acting that way. Knock yourself out.

    Uhm… isn't he a judge? And there's no jury in this case, and … well, I don't think that he will be personally acting as executioner/bailiff/what-have-you.

    IANAL, but I don't quite see the monstrous overstepping of judicial bounds that you're upset at, here…

  27. Wendell Brown  •  Apr 1, 2013 @8:39 am

    Isn't it possible that Judge Wright could recommend a RICO investigation by the US Attorney's Office? I'm not sure I would consider that "penny-ante stuff" from the perspective of penalties….

  28. Ken  •  Apr 1, 2013 @8:41 am

    @Wendell:

    Regarding RICO: this is a pet peeve.

    RICO is vastly overused. Federal judges hate it. Federal prosecutors are very sparing with it. Bad lawyers overuse it and try to apply it to situations where it doesn't fit, and people on the internet call for it in all sorts of ridiculous situations. Forget RICO. It doesn't add anything.

  29. Wendell Brown  •  Apr 1, 2013 @8:42 am

    Good to know Ken. Thanks.

  30. Nicholas Weaver  •  Apr 1, 2013 @9:40 am

    Actually, I'd place money on Steele et al actually showing up [1]: if they don't show, the judge can order them in cuffs to show for Round 3, and based on his writing is not adverse to this idea, especially since Steele et al can't say they haven't had plenty of notice or are unaware of the proceedings.

    E.g. the "having my lawyer duck service" is hardly a good way for a lawyer to duck service from the judge in a case like this.

    But really, all the judge can do if they DO show is recommend to others how to proceed (disbarment, prosecution, etc, which is if anything more likely to happen if they don't show), and slap a not very big fine on Steele and co to pay for Doe's costs (and again, something more likely to happen if they don't show).

    Basically, they tried the "you have no power over me" gambit, got bench-slapped hard, they can't say they haven't gotten notice, so they are going to end up in court one way or another, so they might as well fly themselves rather than taking Con Air.

    [1] If anyone wants to take the bet, the bet is One Cypriot Euro or local currency equivalent.

  31. surlybastard  •  Apr 1, 2013 @9:42 am

    If they fail to show tomorrow, could Wright issue a bench warrant for their arrest?

  32. Nilsson  •  Apr 1, 2013 @9:58 am

    @Nicholas: Sure it still fits into the zloty machine?

  33. Ken  •  Apr 1, 2013 @10:01 am

    @surlybastard: Yes, he could issue a bench warrant.

    Will they answer questions, or take the Fifth? I don't know. But at this point it would be foolish not to consider, very carefully, taking the Fifth.

  34. That Anonymous Coward  •  Apr 1, 2013 @10:21 am

    @Clark –
    "So, what's your point? Unilateral action without checks and balances is OK, but only when it's done with the full weight of the US government behind you?"

    Which is how Prenda was operating. (Allegedly… is a hard to apply word when there is plenty of evidence that everyone can see.)
    Our "expert" makes claims no one has ever verified, and on the basis of that give us a subpoena. Ignore the rules about having to name anyone in the cases, give us another extension it's taking so long to move the case forward. Let us make threats in our "settlement" (read extortion) letters. Let us hassle people who are innocent and threaten them with damages of $150,000. Ignore what our filing claimed, and let us search every computing device in this Doe's home because he isn't cooperating with us, oh and throw in us getting a list of every visitor to his home for the last year. Ignore we haven't named anyone in hundreds of mass cases targeting thousands of people. Ignore us taking the discovery you said we couldn't pursue any further and using it to start cases in another state. Ignore us filing the same lawsuit in 4 courts simultaneously hoping we draw a Judge who isn't aware of the problems with these types of cases.

    This operation had been going on for years with the approval of the full weight of the Government behind it.
    A sitting Federal Judge issued a statement from the bench decrying how ISPs and regular people had duties to protect content holders not actually spelled out in the law, ignore the woman behind the RIAA lobbyist nametag, and pushing them to take actions they are not required to take.
    This is the same Judge who ruled that Does had no right to object in a case seeking their identifying information because they were not a party to the case. This Judge ruled that it didn't matter if you could easily show she lacked jurisdiction over the Does, the only time to raise that issue was once they were named in a case. This Judge had no interest in hearing any challenge to the claims of the plantiffs, accepted them as the gospel and helped more misery be spread.

    Finally there is a Judge who took a closer look at how Prenda is operating and has pointed questions, questions they feel they should not answer despite clear evidence they violated a long list of rules they are supposed to abide by. If he was acting unilaterally he would have just issued a ruling already, instead he waits for them to explain how what he sees before him isn't the truth.

    He wants to hear evidence, he's invited them to answer his questions twice and the reply so far has been thumb their collective noses at him. Meanwhile more bad acts connected to the case he was presiding over have come to light.

    The Judge is going to make a ruling on the case before him, which jumped the rails long ago, and then he is going to turn over what he discovered to the powers that are supposed to oversee these things.

    As to the avatar its very trendy and people often assume they know all about me after they see it.

    You'll have to forgive me being unsympathetic to Prenda et al, I react poorly to legal threats for calling douchebags douchebags. I react poorly to people who misuse the law to make threats. I react poorly to people who extort money. I react poorly to those who inflict misery in a scheme to unjustly enrich themselves. I react poorly to a legal system that has allowed this to go on unchallenged for a long time and has given these parasites the benefit of the doubt over and over but are far to quick to pass judgement on the Does trying to fend off these abuses.

  35. Anonymous  •  Apr 1, 2013 @11:53 am

    I think it's safe to say Judge Wright isn't going through the motions just to let them off the hook with no sanctions or a token fine; he could have done that already and it would have been a lot less trouble for everyone. Speculating about whether or not there will be sanctions, referrals, etc., seems kind of uneccessary now.

    Judge Wright was very upset coming into and going out of the last hearing, so the entire point of this exercise is to justify imposing serious consequences on Prenda, all its lawyers and all its affiliates. If you think there is any chance that is not going to be the outcome, I think you are seriously misreading Wright.

    I'm sure, hypothetically, if Prenda all showed up and had perfectly reasonable answers to all of Wright's questions and alleviated all his concerns, then yes they would walk out of tomorrow unscathed. But since the chance of that happening seems well below zero at this point, we are going to see the nuclear option exercised instead.

    Fortunately, we only have a few hours left to wonder.

  36. Mike D  •  Apr 1, 2013 @12:10 pm

    This one time, at WoW Camp, I was getting sued. And I was the biggest copyright infringer in the history of the great state of Arizona. And I came up with all these clever ideas to get away from the judgment and injunction. And then my attorneys laid out some of these things that could eventually happen (the biguns against parties). And they talked me into just appealing and then the appeals court reversed all the ick and I became a human being again.

    Thanks for the Prenda-specific roadmap, Ken. If some of the items don't sound scary to non-attorneys, it's easy to forget how permanent some of those outcomes are, wiping out entire careers. Prenda should be terrified to have this menu in front of them.

  37. Carl 'SAI' Mitchell  •  Apr 1, 2013 @12:22 pm

    @Clark

    The Prenda lawyers are officers of the court, so Judge Wright's ability to impose sanctions and otherwise punish them is in the scope of internal rules/punishments. Lawyers agree to be bound by stricter rules than the general populace, and can be punished more easily for violations of those rules. A bit like a Sergeant in the army punishing a Private. Except that in this case it's the various rules of procedure of the court and not the UCMJ.

  38. jfb  •  Apr 1, 2013 @12:37 pm

    @Clark:

    What's not to love about one branch of government awarding new powers and authorities to itself without the people or the other branches of the government approving?

    It should not require an act of Congress for the judiciary to establish its own rules and procedures to manage behavior within the courtroom, including any sanctions, especially when dealing with parties acting in what appears to be bad faith.

  39. James  •  Apr 1, 2013 @12:43 pm

    Reading the transcripts to date, his honor seems like a man with a well controlled temper. He asks pointed and direct questions and he expects, no demands, direct and honest answers. The fuse starts to burn only when he thinks he is being ignored or if the person answering the question is being evasive (apparently a specialty of some of the principals in this case). Judge Wright clearly does not suffer fools.

    The trouble with people like Otis Wright is that at the end of that long, slow-burning fuse is a major pile of highly unstable TNT. Sooner or later that fuse burns to the end and you don't want to be in that court when it does, at least not on the wrong side of the room. Pleading the fifth is highly preferable to being evasive and absence will likely invite a visit from Raylan Givens (for all you Elmore Leonard fans). We all know how it ends when Raylan shows up.

  40. Nicholas Weaver  •  Apr 1, 2013 @1:23 pm

    James: Are you writing for Season 5 of Justified? I can see the mid-season episode now, where Raylan has to drag a Paul Tin Hammersmelter up in front of Judge Reardon for contempt…

  41. Perfect Stranger  •  Apr 1, 2013 @2:08 pm

    (background music…….Connie Francis wailing "Who's Sorry Now?)

    Haven't enjoyed such a riveting read in a long time…..just like waiting with trepidation for the next issue of a favorite comic book…..to see if your favorite hero escapes…..to be continued…

    (Connie…"You had your waayyy…now you must paayyyy…I'm glad that you're sorry nowwww…..)

    Gotta run now….need beverages and munchies for tomorrow….

  42. mcinsand  •  Apr 1, 2013 @2:11 pm

    @Clark,

    >>What's not to love about one branch of government awarding new
    >>powers and authorities to itself without the people or the other
    >>branches of the government approving?

    As we say in the South, 'bless your heart.'

    N. Weaver:

    Wow! I can't believe this is Season 4.

  43. mojo  •  Apr 1, 2013 @2:21 pm

    Well, he could turn purple and quack like a duck.

    But I wouldn't count on it.

  44. Dan Weber  •  Apr 1, 2013 @3:06 pm

    I don't know if this is a dupe, but looking at the RECAP file, it looks like the judge has denied Peter's plea to not appear, and that Waxler has tried more addresses in an attempt to get a response to service.

  45. Lucy  •  Apr 1, 2013 @3:08 pm

    If Duffy, Steele, and Hansmieir show up tomorrow to defend themselves against sanctions, I'll lick my elbow.

  46. Lucy  •  Apr 1, 2013 @3:10 pm

    Sorry. I got my e's and i's mixed up.

  47. Matthew Cline  •  Apr 1, 2013 @3:30 pm

    @Bear:

    Oh. So that's why Judge Wright scheduled the hearing for the second of April.

    It'd be great if that really was the reason it wasn't scheduled for the first.

  48. Daniel Neely  •  Apr 1, 2013 @3:33 pm

    Are there any indications that Duffy, Steel, Hansmeier, etc have realized they're is serious trouble and followed Gibbs lead in hiring judicial malpractice lawyers to try and save their careers?

  49. Anonymous  •  Apr 1, 2013 @3:49 pm

    @Daniel Neely

    Duffy, Steele, Hansmeier and Van Den Hemel (the paralegal) retained a Southern California-based malpractice attorney, Heather L. Rosing. So far, all she has done is file that last-minute Hail Mary attempt to get them out of the last hearing and order a transcript. She would not accept service of the order to appear April 2 on their behalf. We'll find out tomorrow what her plan is.

  50. That Anonymous Coward  •  Apr 1, 2013 @3:59 pm
  51. Anonymous  •  Apr 1, 2013 @4:13 pm

    Well now we know Hansmeier knows about the April 2 hearing. This is his second published interview since Wright's second order to appear.

    This will make it really interesting to see what the excuses are if he doesn't show up tomorrow. At this point I think I'm going to change my bet to Hansmeier shows up.

    He's probably unwilling to say if he's going or not so he can either surprise his "friends" by actually showing up and throwing them under the bus, or doesn't want the courtroom packed with additional spectators that will be sure to go if they know one of the "senior partners" is guaranteed to appear.

  52. IANAL  •  Apr 1, 2013 @5:23 pm

    > Well now we know Hansmeier knows about the April 2 hearing.

    Wasn't he in the last hearing? I forget. It's hard to keep track of these guys sometimes.

  53. Dave Ruddell  •  Apr 1, 2013 @5:44 pm

    Ken, can you give us any sort of projected timeline for posting tomorrow? I don't want to be wearing out the refresh button too early in the day.

  54. Ken  •  Apr 1, 2013 @5:50 pm

    @Dave: Well, the hearing is at 10. It may or may not go past lunch into the afternoon. And then after the hearing I will probably be hungry and need to get something to eat. And sometimes after I eat I get sleepy. And then I will probably have to do some lawyer things. Then I have to pick up my son from Boy Scouts. Then I need to talk to my wife for a while and maybe watch some TV. Sometimes I get sleepy again doing that. And then maybe I will think about writing, if I don't have to work on the big project that's going to take me all Wednesday.

  55. xbradtc  •  Apr 1, 2013 @6:15 pm

    @Carl 'SAI' Mitchell

    Finally, INAL, but I get to make a point!~

    In the Army, Sergeants do not punish Privates. They train them, correct them, motivate them, and counsel them, but "punishment" is something only a commissioned officer can impose, either via Article 15 proceedings, or court martial.

  56. Dave Ruddell  •  Apr 1, 2013 @6:17 pm

    Ah man, and all those time are Pacific too…

  57. MarkH  •  Apr 1, 2013 @6:56 pm

    I'm not trying to be dramatic here, but Prenda has engaged in actions that, if true, undermine the judicial process.

    Possibly their over-mining of the judicial process with these abundant suits is what is undermining the judicial process. They are guilty of both! :p

  58. Myk  •  Apr 1, 2013 @9:41 pm

    if I don't have to work on the big project that's going to take me all Wednesday

    An alert strategist can always tell when opportunities are about to open up in the market. Ken would put the 'class' back into 'class action' and the 'right' back into 'copyright trollling'.

  59. falcon789  •  Apr 2, 2013 @2:40 am

    @Anonymous 4:13pm
    Since Hansmeier certainly knows about the hearing from the interview, I think your theory about him throwing the others under the bus is right on target. IMO Hansmeier will be showing up with different council than Steele and Duffy, he is going to pull a Gibbs and try to incriminate everyone but himself, his brother and perhaps Van Der Hammel. Its going to be a very interesting hearing, I can't wait to see it unfold.

  60. James  •  Apr 2, 2013 @4:24 am

    @Nicholas Weaver. Still working on the theme line for Season 5 but I have a few pieces of dialog written.

    Art: What the hell happened out there today?
    Raylan: Now Art, you know I never shoot anybody that doesn't need shooting.

  61. AlphaCentauri  •  Apr 2, 2013 @5:11 am

    One individual as judge, jury, and executioner? No, nothing wrong about cheering on the State acting that way. Knock yourself out.

    I don't see it as that menacing. A judge has responsibility to make sure the judiciary doesn't become the tool of those trying to commit crimes against innocent people. Every time Prenda law got a subpoena to collect IP data from an ISP, the judges allowed the government to become a participant in the crime. He may seem pretty zealous here, but he's really only asking the questions that should have been asked the first time a subpoena was sought. And every time he tries to get an answer, he encounters obvious attempts to avoid providing information. He can be forgiven for being angry that this went on so long, or that he has to do the work that hundreds of other judges shirked.

  62. Kfix  •  Apr 2, 2013 @6:11 am

    Lucy, so you'll leck your ilbow then?

  63. Nicholas Weaver  •  Apr 2, 2013 @6:21 am

    And can I just say that I LOVE that the Prenda articles are also tagged with "BetterCallSaul". These guys do need a criminal attorney.

  64. Ken  •  Apr 2, 2013 @6:56 am

    Clark helps keep me honest when my distaste for a particular target of government power threatens to overwhelm my suspicion of government power.

  65. Jon  •  Apr 2, 2013 @7:01 am

    OK, there's nothing else on Judge Wright's calendar for today, so there's nothing to prevent this from taking all day if necessary. Besides Gibbs, Pietz, and Ranallo, there are also special appearances listed for: Andrew J. Waxler (Gibbs' lawyer), Barry Z. Brodsky, and Won M. Park (Waxler's partners). And if last time is any indication, there may be "special surprise guests" as well…

  66. Jon  •  Apr 2, 2013 @7:11 am

    Slight technical correction: Park is an "associate" at the firm; Waxler and Brodsky are partners.

  67. Nicholas Weaver  •  Apr 2, 2013 @7:22 am

    Fortunately for Clark, I think Ken's analysis shows that Judge Wright's unilateral power is reasonably limited: the odds of the Prenda luminaries wearing handcuffs at the end of the day seems about zero, and in terms of fines, how much can the Judge reasonably impose beyond Doe's legal costs?

    So at this point, its grab the popcorn and watch the due process of law…

  68. EnnuiThePeople  •  Apr 2, 2013 @7:45 am

    Warmin' up the popcorn….

  69. Qitaana  •  Apr 2, 2013 @8:45 am

    Sigh.

    Just yesterday, my doctor advised me to restrict my carbohydrate intake.

    Can anyone recommend a low-carb popcorn alternative?

  70. mcinsand  •  Apr 2, 2013 @9:07 am
  71. mcinsand  •  Apr 2, 2013 @9:09 am

    Crap! I was trying to make a link to the wikipedia article 'officers of the court,' and I definitely misapplied the 'allowed tags' information. I apologize.

  72. Kat  •  Apr 2, 2013 @9:14 am

    Qitanna–if it's crunch you're looking for, sunflower seeds or roasted pumpkin seeds taste pretty good (YMMV). Or if you want something that can satisfy a carb craving, spaghetti squash is lovely with a little bit of sauce. Like the name implies, once you cook it and scoop it out, it tastes and has texture that's extremely similar to spaghetti cooked al dente. Plus you can just poke some holes in it and put it in this microwave.

  73. Kat  •  Apr 2, 2013 @9:21 am

    in THE* microwave. (Sorry, clicked submit early.) It's really easy to cook and it comes naturally in strands without any extra work. It's literally just remove the seeds (easy) and then dig in with a fork. I like to use the skin like a bowl; it's sturdy.

    Plus, if you like squash, it's still got a great flavor and can be eaten plain. But if you don't like squash, you can easily put sauce over it and it tastes exactly like spaghetti.

  74. Thad  •  Apr 2, 2013 @10:06 am

    A court; a date; a blog.

    I don't think I ever looked forward to such a combination before, and I have been looking forward to this one a lot.

    It's pretty much the end of 2 April here …but I guess there's that stuff called time zones, and maybe, just maybe, that Wednesday project of Ken's. Ken… You surely can't DO that to us?

  75. Nicholas Weaver  •  Apr 2, 2013 @10:23 am

    Sweet jeebus, according to Twitter everyone showed, everyone took the 5th, judge left pissed

  76. Another anonymous NAL  •  Apr 2, 2013 @10:38 am

    Hold the phone. "Everyone showed"? Or were they still short an Alan Cooper?

  77. Dan Weber  •  Apr 2, 2013 @10:49 am

    How many Alan Coopers?

    Showing up is definitely better than not showing up.

    How far does the right to plead the Fifth extend? If you affirm something to the court, can you take the Fifth when you are asked why you should explain it?

  78. Lucy  •  Apr 2, 2013 @10:52 am

    Wow! I lost that bet. Not sure how to lick my elbow.

    Can't wait for the write up. Can Judge Wright still wrath in the face of the fifth?

  79. Dan Weber  •  Apr 2, 2013 @10:52 am

    Eh, I should provide the short version for people who don't have Twitter. Ken says:

    As I will write later: the Prenda attorneys taking the Fifth is an extinction-level event for Prenda.

    Adam Steinbaugh says:

    Lutz and Peter Hansmeier were unrepresented. Rosen (attorney for Duffy, Angela) said they would take the Fifth

    Parker Higgins:

    Judge Wright ordered Paul Hansmeier and John Steele to sit in the front row. When neither would testify, he was very not happy.

    TechDirt:

    In case you're wondering, @Popehat is at the court for today's Prenda hearing and will be writing up his typically brilliant analysis for us

  80. Sarah  •  Apr 2, 2013 @10:55 am

    TechDirt says everyone showed up EXCEPT the AF Holdings Alan Cooper.

  81. Another anonymous NAL  •  Apr 2, 2013 @10:59 am

    TechDirt's early "appetizer" report on Prenda says the other Alan Cooper didn't show, and when Wright asked about him, got no response:
    http://www.techdirt.com/articles/20130402/10461222548/team-prenda-shows-up-court-pleads-fifth-angry-judge-ends-hearing-12-minutes.shtml

  82. TexasAndroid  •  Apr 2, 2013 @11:31 am

    And now starts the repeated refresh of the main page of Popehat, as we all wait impatiently for the detailed report. :)

  83. Nicholas Weaver  •  Apr 2, 2013 @11:35 am

    Oh, my bet on what happens next:

    Judge Wright uses pretty much all options in Part I, plus perhaps also including a little note to the IRS which was reportedly also showing up.

    Judge Wright on Part II files an invitation to Pietz to file a motion for attorney's fees & sanctions, including against the whole Prenda crew (not just Gibbs).

  84. Anonymous  •  Apr 2, 2013 @11:45 am

    What is the status of fees and costs?

    Can the judge still order Prenda et al to pay the fees and expenses of the defense? Or more specifically, since the shell corporations were apparently frauds (the judge made a preliminary conclusion, and this has not been refuted) make the judgement against Steele et al personally?

    Certainly Prenda could appeal, but the presumption would be that it was a fraud. Prenda would actively need to show that the shell corporations were organized at the direction of third parties and run by others, not the law firm itself.

  85. htom  •  Apr 2, 2013 @11:49 am

    Are all ya'all pulling my leg? April Fool's was yesterday. (That's an expression of my surprise at what's happened, not a guess at what Judge Wright is thinking.)

  86. TexasAndroid  •  Apr 2, 2013 @11:54 am

    Thinking about this, it's likely the best thing they could have done from a personal POV. Things were starting to look bad against them personally, and answering much of any questions would/could have easily made things worse.

    From the POV of Prenda the company, this was a very, very bad thing for them to do. I would hazard a guess that that's what Ken was referring to in his "Extinction Level Event" comment. That this is an event likely to be the beginning of the end for Prenda itself.

  87. Anonymous  •  Apr 2, 2013 @12:23 pm

    Once they showed up, pleading the fifth was the only thing they could do.

    It's pretty clear they were committing a fraud. And it seemed that everything they were doing was fraudulent, not just a narrow aspect such as the establishment of the shell corporation or continuing to request information on a quashed warrant. Starting to answer any question would immediately lead to self-incrimination.

    I'm half surprised that the clerk (paralegal?) took the fifth, but they were nominally the head of a shell corporation. Perhaps they were an active conspirator rather than just a handy person to sign a paper.

    I guess we can can stop searching for Salt Marsh (pretty certainly Anthony Saltmarsh, presumably uninvolved) and the 'other' Alan/Allen Cooper, as they didn't show at the hearing.

  88. Merissa  •  Apr 2, 2013 @12:50 pm

    Well, that makes for a sad-in-the-pants recap.

  89. Merissa  •  Apr 2, 2013 @5:35 pm

    Ooh, Forbes.com is linking you now. Fancy.

  90. Austin  •  Apr 3, 2013 @4:36 am

    How does the spectre of IRS involvement compare (in terms of severity, impact, overall scariness) with the results of the actions Judge Wright can take?

  91. Kat  •  Apr 3, 2013 @3:04 pm

    @Austin: The IRS can basically instantly freeze all bank accounts/assets and put liens on everything Prenda et. al. own if they think that something suspicious is going on. The comments are kind of buried right now, but there is a former tax person in thread discussing this if you have the patience to dig. :)

  92. Kat  •  Apr 3, 2013 @3:07 pm

    (Should clarify: meant the thread of the latest post on Prenda, at http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take-the-fifth-rather-than-answer-judge-wrights-questions/ I need to learn to proofread more better yo.)

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