Prenda Law Is Under Withering Fire From All Sides

Effluvia

All of my coverage of the Prenda Law saga is collected here.

The Prenda Law crew has been up to shenanigans for many months, and Ars Technica and Techdirt and Die Troll Die and Fight Copyright Trolls were all doing great work covering them long before I took notice. I was preoccupied by crucial legal issues like Bigfoot and ponies and thus-and-such until Prenda Law blundered into my core area of interest: bogus defamation suits calculated to silence critics.

My first post about Prenda explained how Prenda Law and its principals Paul Duffy and John Steele filed three defamation suits in three federal districts against Alan Cooper (the man who accuses Prenda of stealing his identity as a front man for fake plaintiff entities), Paul Godfread (Cooper's lawyer), and various unnamed John Does. I also reported when Alan Cooper seized the initiative and filed counterclaims against Prenda Law and Paul Duffy. Steele shrewdly dismissed his defamation suit in Florida before Cooper could counterclaim.

Today there were updates in the defamation cases — anti-SLAPP motions filed by Godfread and Coooper. In addition, Morgan Pietz — whose defense of John Doe defendants has led to Prenda's downfall — filed his promised supplemental brief before Judge Wright. Meanwhile, in Florida and Arizona and San Francisco, attorneys nip at Prenda's heels.

April is the cruelest month for Prenda. You might want to grab a sandwich; there's a lot going on, and this will take a while.

Hail Federal Court, Paul Duffy Salutes You

There's a great line in the book A Game of Thrones in one of the Catelyn chapters. The mercilessly competent sellsword Bronn, with skills born of hard circumstance and need rather than privilege, is acting as Tyrion's champion in a trial in the Aerie. It's increasingly clear that he badly outmatches the Arynn champion, Ser Vardis Eagen. Eagen is battered and doomed. The deluded Lysa Arynn calls out for Eagen to finish Bronn, as if Eagen had just been playing. "And it must be said of Ser Vardis Eagen," Martin writes, "that he was true to his lady's command, even to the last." Eagen redoubles his effort and does his best, until he is bloodily dispatched.

It must be said of Mr. Paul Duffy that he is doing his best.

He's trapped and bloodied now. He's invoked his Fifth Amendment rights rather than answer questions posed by Judge Wright in Los Angeles about Prenda Law's conduct. If he wants to maintain his silence, he has to rely on legal arguments rather than offering his own testimony live or by declaration. He's pointed the finger at Brett Gibbs to defend himself, but Gibbs is starting to lash out at the people who have thrown him under the bus. Duffy's confederates Steele and Hansmeier aren't talking. Other past and current local counsel are probably smart enough to see how Prenda Law treated Gibbs; Duffy can't rely on them for support. In San Francisco, in a case in which Duffy is battling a demand for attorney fees based on Prenda Law's alleged misdeeds, a federal judge has ordered him to appear personally this week. So it's not shaping up to be his best year ever.

But he's a scrapper, our Mr. Duffy. In Illinois, where he and Prenda Law sued Alan Cooper and Paul Godfread, he's attacked their counterclaims. He's filed motions to dismiss those counterclaims in the Southern District of Illinois case brought in Prenda's name and the Northern District of Illinois case brought in his own name. In his nearly identical motions — one brought pro se on his own behalf, one on behalf of Prenda Law — Duffy argues that the counterclaims are without merit because they complain about actions by John Steele and Paul Hansmeier and others, and Prenda and Duffy are not liable for their actions. This argument is not likely to be successful in the long term; at worst, Cooper can amend his counterclaims to allege more specific facts suggesting that Prenda Law, Duffy, Steele, and Hansmeier have been acting in concert. Moreover, Duffy — in defiance of Rule 11, which requires attorneys only to make claims which have a good-faith basis — lets fly with this whopper:

In a completely unrelated proceeding, one of the two named Defendants, Alan Cooper, in January 2013 filed a complaint against several entities, including Plaintiff, alleging among other things the misuse of Defendant’s name; that action is pending in State court in Hennepin County, Minnesota (the “Minnesota Suit”).

Yeah, sure, Cooper's suit is "completely unrelated" — except that (1) it involves the same parties, (2) it concerns Prenda's operations, (3) it accuses Prenda of stealing Cooper's identity, which Prenda's and Duffy's complaints suggest is a defamatory statement, (4) John Steele used all three suits to threaten and intimidate Cooper as soon as Cooper filed his complaint, and (5) Prenda's and Duffy's complaints specifically identify the Cooper complaint as one of the forms of defamation they are suing over. This is not just a lie to a federal court. It's not even a plausible lie. It's a stupid, ineffectual, desperate lie.

Duffy also filed a motion to remand Prenda Law's claim — that is, to send it back to Illinois state court. I could explain federal jurisdiction until we hate each other, but let me be brief: federal courts can take cases that allege federal claims (say, a copyright claim) or diversity cases. A diversity case is when the plaintiffs and defendants are from different states. Duffy's argument in Prenda's Motion to Remand, with Exhibit A, Exhibit B, and Exhibit C, is that Cooper and Godfread improperly removed Prenda Law's complaint to federal court because just before they did Prenda Law amended its complaint to add its new incarnation, "Alpha Law Firm," as a plaintiff, and Alpha Law Firm is a Minnesota resident, and therefore there is not "diversity" between plaintiffs and defendants. There are some problems with this argument, which Duffy will no doubt discover when Cooper and Godfread file their opposition to the motion. But here's the curious thing: the amended complaint adding Alpha Law Firm — listed above as Attachment A — doesn't seem to identify any defamatory statements made about Alpha Law firm. It only talks about statements made about Prenda and its attorneys. This suggests that Prenda Law may have added Alpha Law as a sham plaintiff simply in an effort to prevent diversity and evade federal court. A federal judge might have questions about that — which, at this point, Paul Duffy won't be able to answer, because he's taking the Fifth. Even if he wins, the case just goes back to state court, where he'll still be hamstrung by taking the Fifth.

Paul Duffy's doing his very best. It's not going to be good enough.

Prenda, Meet SLAPP. SLAPP, Meet Prenda.

Alan Cooper's counterclaims showed that he will be relying on Minnesota's anti-SLAPP statute. In my post, I speculated about why he would do so when he's in Illinois, which has its own statute. Today he and Mr. Godfread filed anti-SLAPP motions explaining the matter even to a dummy like me.

I'll start by explaining a bit about anti-SLAPP statutes. A "SLAPP" is a Strategic Lawsuit Against Public Participation — that is, a lawsuit designed to chill speech. An anti-SLAPP statute is a law that permits a defendant to file a special motion to dismiss a SLAPP suit, and often to recover fees. Some, but not all, states have anti-SLAPP statutes of varying quality. I've explained at length how they work, but let me sum up.

Despite what TV suggests, a defendant generally can't easily get rid of a civil case before trial on the grounds the plaintiff has no evidence. A motion to dismiss — or "demurrer" — is an opportunity to ask whether, if everything in the complaint is true, the plaintiff has a legal claim. But that motion doesn't and can't inquire whether the plaintiff has evidence. Much later in the case after expensive and intrusive discovery, the defendant can file a motion for summary judgment, which asks if there is any evidence at all, however little, supporting the plaintiff's claim. But you can't just show up in court saying "they'll never be able to prove this." That's why litigation can be so ruinous even if the plaintiff doesn't really have a case.

An anti-SLAPP motion empowers a defendant who has been sued for speech to force the plaintiff to produce evidence showing they might ultimately win. It's an exception to the general rule, a special tool that makes the plaintiff show immediately that they have both a factual and legal basis for their claims. If the statute is drafted right (a long post all by itself), it's an effective bullwark against bogus attacks on speech. The statutes work in two steps. In step one the defendant has to prove that the complaint is targeted at protected speech (for instance, by showing that the speech complained of was on a public issue, or in a public proceeding), and in step two the burden shifts to the plaintiff to present evidence to prove that they can prevail — that they have evidence sufficient to show that the speech they are attacking is not protected by law and that it wronged them.

Cooper and Godfread filed anti-SLAPP motions in the Northern District of Illinois case brought by Paul Duffy and the Southern District of Illinois case brought by Prenda Law. They are supported by Exhibit A, Exhibit B, Exhibit C, Exhibit D. Exhibit E, Exhibit F, Exhibit G, Exhibit H, Exhibit I, Exhibit J, and Exhibit K. They begin with a swift and ugly depiction of the Prenda Law team's threats against Cooper and Godfread in retaliation for Cooper's complaint about his identity being stolen.

Cooper and Godfread rely on the Minnesota anti-SLAPP statute. How can they do that when they are in federal court in Illinois? They make an argument that I didn't anticipate — they argue that under a complex choice-of-law analysis, Minnesota's law applies because the complaints allege actions and injury in Minnesota. I could summarize the applicable law, but then we'd hate each other again. Under step one of the anti-SLAPP analysis, Cooper and Godfread argue that whatever causes of action Duffy and Prenda Law have alleged, they are ultimately complaining about speech, triggering the anti-SLAPP statute's protections. For the second point, they argue that Duffy and Prenda cannot possibly carry their burden of proving that they can win. Cooper and Godfread point out that Duffy's and Prenda's complaints are at least partially directed at Cooper's lawsuit, but lawsuits are absolutely privileged from defamation actions. They also assert that the rest of the allegations are speculation — that Prenda and Duffy will not be able to prove that Cooper or Godfread had anything to do with the internet comments made about Prenda and the various Prendarasts.

Frankly the second part of the argument was not as broad as I would expect. Prenda's and Duffy's complaints are problematical because most of the words they cite as defamation are actually mere insults or statements of opinion, neither of which can be a basis for a defamation action. Normally you'd expect Cooper and Godfread to argue that the plaintiffs can't prevail for those additional reasons. But here's the beauty of this situation for Cooper and Godfread — the anti-SLAPP statute forces Duffy and Prenda to come forward with actual evidence establishing that they might win. To do that, they have to come forward with evidence that the statements that they are complaining about are false. But those statements are about exactly the things that Steele and Hansmeier and Duffy took the Fifth rather than address. Duffy and Prenda can't carry their burden unless they reverse the decision to take the Fifth. Ultimately, Cooper's and Godfread's narrower argument is elegant and well-suited to the circumstances. It's not always the right strategy to make every possible argument.

The anti-SLAPP motions will either force Duffy to abandon his right to remain silent or make only perfunctory responses to the motions.

Meanwhile, In Los Angeles . . . .

Just because Illinois is heating up, did you think we forgot Prenda Law here in Los Angeles? No.

After the belated positions filed by John Steele and Paul Hansmeier and Paul Duffy, Morgan Pietz sought leave to reply. Duffy, Hansmeier, and Steele objected angrily, if not wisely. Judge Wright granted leave, and today Pietz filed his supplement. The brief is here, Pietz' declaration is here, the declaration of his technical expert is here, and the exhibits are here.

Pietz can be excused for sounding a bit triumphant after the attorneys opposing him took the Fifth rather than address the questions he raised. He leads by pointing out that although John Steele claims there is no evidence that he has any ownership interest in Prenda Law's clients, Steele's own attorneys previously told the Florida State Bar the opposite — and a Prenda law local counsel also said that Steele had an interest in AF Holdings. Pietz attacks the credibility of Brent Berry, the real estate agent who claimed that Alan Cooper was in on the scheme and is violent and mentally ill. Pietz points out that Berry is Steele's agent and just sold a house for him in February. Pietz also points out that Berry signed the declaration in February, but Prenda law oddly withheld it until after the hearings before Judge Wright. Finally, Pietz echoes what everyone has been saying — Berry's testimony might suggest that Cooper knew his name was being used, but if accepted it proves that Cooper was a mere shill for the Prenda Law attorneys who actually controlled the plaintiff entities. Pietz also offers rebuttals to the Prenda lawyers' other arguments — he argues that Judge Wright's powers allow him to award attorney fees as sanctions based on the record before him, and he offers the declaration of a technical expert to rebut Prenda's arguments that its investigation of downloaders was reasonable and sufficient.

What remains? Judge Wright could issue an order any day. The Prenda Law attorneys may seek leave to attack Pietz' filing. They'd better hurry.

And So On, Across The Nation

The word of Prenda is spreading. As I said, in San Francisco a federal judge has ordered Paul Duffy to appear personally in response to arguments about Prenda Law's conduct. In another San Francisco case the defendant is reporting Prenda Law's invocation of the Fifth in support of their motion for fees and describing Prenda as having "fled the scene." In Florida a defendant is withdrawing his sanctions motion against Brett Gibbs while flipping Gibbs against Steele and Hansmeier. In Arizona a defendant is updating a judge on the Prendateers' invocation of their right against self-incrimination.

Prenda Law, as a viable entity, is dead, and its lawyers are in grave jeopardy. The wheels grind slowly. But they grind. They grind.

Last 5 posts by Ken White

106 Comments

104 Comments

  1. Jim Tyre  •  Apr 16, 2013 @11:22 pm

    Ken, it's clear that you're engaging in unfair competition, that you're monopolizing the Prenda Law reporting biz.

    Really, you should be considerate, leave a few scraps to those who preceded you. '-)

  2. Zebulon  •  Apr 16, 2013 @11:22 pm

    Thanks for the excellent summary Ken!
    Incidentally, I was in Minnesota over the weekend and it turns out I have a friend who may be somewhat acquainted with one of the Prenda folks… can't wait to hear what he has to say about all this Prenda stuff I've been reading about.

  3. SJD  •  Apr 16, 2013 @11:25 pm

    Prenda Law, as a viable entity, is dead, and its lawyers are in grave jeopardy.

    So my advice to all the Does who still receive calls from Mark Lutz or one of his incarnations (and I'm aware of the instances of such stupidity happened as recent as last week): plead the Fifth and hang up.

  4. anon1123  •  Apr 16, 2013 @11:53 pm

    Don't forget about the LW systems case in Illinois (13-L-0015) people are just starting to receive calls and they are still going on with it

  5. Matthew Cline  •  Apr 17, 2013 @12:03 am

    The anti-SLAPP motions will either force Duffy to abandon his right to remain silent or make only perfunctory responses to the motions.

    If he made substantial responses, would that actually waive his Fifth amendment rights, or is it merely that anything he voluntarily says in one court case can be used against him in other court cases?

  6. AnonymousDoe  •  Apr 17, 2013 @1:10 am

    So my advice to all the Does who still receive calls from Mark Lutz or one of his incarnations (and I'm aware of the instances of such stupidity happened as recent as last week): plead the Fifth and hang up.

    I've heard this is bad advice because they're lodging civil complaints, and pleading the 5th (even as a joke) can be misconstrued to imply guilt.

    Regardless, if lutz ever calls me again, he's going to get this line.

  7. peej  •  Apr 17, 2013 @1:27 am

    All this fun and a new word, too: "Champerty." Litigation paralegal back in the day, but don't recall running across that one; guess my guys weren't sufficiently high-toned. . .

    Also, the .pdf metadata assertion made by the tech expert is kind of fascinating. Is that kind of evidence as to document authorship and the like widely accepted nowadays? Or is this a novelty?

  8. Noah Callaway  •  Apr 17, 2013 @2:53 am

    @Matthew Cline

    IANAL

    "or is it merely that anything he voluntarily says in one court case can be used against him in other court cases?"

    I think this is the more likely scenario. Much the same way Pietz used Steele's testimony from the Florida hearing in this filing, if Duffy made relevant statements in another court-case it may be submitted as an exhibit in this case.

  9. Kat  •  Apr 17, 2013 @3:19 am

    There is an exhibit QQ referenced in line 27 of page 8 in Pietz's brief.

    Day made.

  10. Paul E. "Marbux" Merrell, J.D.  •  Apr 17, 2013 @3:23 am

    The Gibbs declaration in the record of the Florida case looks to me like a mortal wound to Hansmeier and Steele. Their position now looks worse to me than "grave jeopardy."

    I'd expect Morgan Pietz to get that declaration before Judge Wright ASAP; it devastates the Steele/Hansmeier position regarding their role in the case and the judge's jurisdiction over them.

    Regarding Duffy representing Prenda Law in the Cooper case after having pleaded the Fifth in California in regard to what he knows about Prenda: How can an attorney in his position permissibly function as an officer of the court when representing the same party in another case? An attorney's signature under Rule 11 affirmatively certifies not only good legal grounds but also good factual grounds. E.g., if the judge has questions about Alpha Law Firm being a sham party manufactured by Prenda's senior management only to destroy the appearance of diversity, would Duffy answer those questions?

    Seems to me that Duffy's continued representation of Prenda is susceptible to challenge because he is a potential witness. See e.g., Model Rule 3.7(a) (prohibiting representation in a matter "in which the lawyer is likely to be a necessary witness").

    I had plans of getting some work done tonight, but here I am again, wallowing in PrendaStuff.

  11. M. Sean Fosmire  •  Apr 17, 2013 @3:48 am

    It should be mentioned that the anti-SLAPP motion would be viable only in jurisdictions where the statutes provide for it. It is not available everywhere.

  12. Aimee  •  Apr 17, 2013 @4:12 am

    Closing comment from judge in Exhibit QQ: 'When I hear people cracking lawyer jokes, I always take umbrage and point out that the profession of Lincoln, the profession of Madison and Jefferson represents the highest ideals in our society. But recent events give me pause how true this is."

    I haven't believed in law and lawyers since I was in college and tried to defend myself against a speeding ticket. Oddly enough, the recent legal responses to Prenda's shenanigans have somewhat redeemed the profession in my eyes. Then I remember what Prenda did to even get that response.

  13. Doug  •  Apr 17, 2013 @4:42 am

    The law may grind slowly, but it may grind hard in this case. Nothing is certain, but the probabilities that hammer time is coming increases with every Federal judge that takes note of this.

  14. Nicholas Weaver  •  Apr 17, 2013 @4:49 am

    Also, the .pdf metadata assertion made by the tech expert is kind of fascinating. Is that kind of evidence as to document authorship and the like widely accepted nowadays? Or is this a novelty?

    Its quite acceptable. PDF metadata (and pretty much all file metadata. Or file content for that matter) can be trivially faked, but it has to be faked before the files were uploaded to the courts.

    Since they were uploaded either by Brett Gibbs or on Brett Gibbs behalf a few months ago, the faking of the metadata itself would require a near omniscient attempt to frame Paul, plotted out well in advance.

  15. Basil Forthrightly  •  Apr 17, 2013 @4:55 am

    Pietz: "the sanctions should be payable jointly and severally".

    I like this. If it works, it effectively pierces all the shells and fronts; not just the client shells, but law firm shells as well, and goes straight to John Steele's wallet and personal assets.

  16. Nicholas Weaver  •  Apr 17, 2013 @4:57 am

    Oh, and e.g. the metadata for Pietz's reply:
    Document Title: Microsoft Word – Final Reply v7.docx
    Author: Morgan Pietz
    PDF Producer: Mac OS X 10.6.8 Quartz PDFContext; modified using iText 2.1.7 by 1T3XT
    Content Creator: Microsoft Word

    While Schoen's declaration was scanned in:
    PDF Producer: Adobe PSL 1.1e for Canon; modified using iText 2.1.7 by 1T3XT

    So the hypothesys that Pacer doesn't muck with PDF metadata (other than the modified bit) for single documents appears reasonable. It also suggests that Pietz should update his mac: Snow Leopard is effectively "End Of Life" and no longer well supported by core security updates.

  17. Ken Mencher  •  Apr 17, 2013 @5:09 am

    I'm wondering when the phrase "hoist by your own petard" will be dragged out.

    I'm also wondering what's happening with all the requests for mass quantities of server logs…knowing some of the history of Prenda (filing subpoenas after being told not to), are they still pushing forward with that, or has all their attention been consumed by running in circles looking for havens…

  18. Damon  •  Apr 17, 2013 @5:18 am

    Pops popcorn

    Watches. When is the commercial over so the show can come back on? I like watching asshats squirm. Nice work Ken.

  19. AlphaCentauri  •  Apr 17, 2013 @5:50 am

    With all the local lawyers they have used to pursue Does, how much do those lawyers and their phone dunners know about what is going on? How much can the Prenda folks bring to their attention without incriminating themselves? It may be awkward for them to call off their dogs, especially subcontracted dogs with subcontracted phone banks who don't consider Prenda a very big part of their practice and don't initiate communication with Prenda often.

  20. Nicholas Weaver  •  Apr 17, 2013 @6:13 am

    @AlphaCentauri: I doubt Prenda is going out of its way to notify its local patsiesattorneys about the global situation beyond just going "withdraw the cases w/o prejudice if possible, with prejudice if necessary"

    Instead, local council is going to find itself well notified by defense council, in the form of various sanctions motions, and might very well follow the lead already established by Gibbs and start throwing senior Prenda council under every bus in the nation…

  21. Lucy  •  Apr 17, 2013 @6:27 am

    So now we are at the point of waiting for Judge Wright to rule on this debacle, correct? Is there anything else that can be filed by anyone to delay judgement day? Continuing to file objections seems to be another tactic based in buying more time for continued shenanigans, rather than based in lawful concern.

    Popehat is my go to place charged with creating balance in the force of the legal system that had, in my tiny world view, been consumed by the dark side. Thank you for a reliable and continuing job well done.

  22. Nicholas Weaver  •  Apr 17, 2013 @6:35 am

    Ah, and the Minnesota vs Illinois choice of SLAPP statute mystery solved:

    (b) If a motion under this chapter is granted and the moving party demonstrates that the respondent brought the cause of action in the underlying lawsuit for the purpose of harassment, to inhibit the moving party's public participation, to interfere with the moving party's exercise of protected constitutional rights, or otherwise wrongfully injure the moving party, the court shall award the moving party actual damages. The court may award the moving party punitive damages under section 549.20. A motion to amend the pleadings under section 549.191 is not required under this section, but the claim for punitive damages must meet all other requirements of section 549.191.

    (Emphasis added)

    Minnesota not only has a "Shall award attorneys fees and costs", but also says "shall award actual damages" and "may award punitive damages"!!!

    Which means Minnesota not only allows SLAPP-back, but allows a really strong SLAPP-back, which is much harder than Illinois which only covers recovery of costs & fees.

    So although either statute should shut down this suit (the Illinois statute is much narrower, but still broad enough), Minnesota's statute can really, really hurt Prenda.

  23. Lucy  •  Apr 17, 2013 @7:09 am

    On a side note: Popcorn Suggestions
    -Soy Sauce (Braggs Amino Acids as a healthy substitute)
    -Nutritional Yeast
    -Chile Powder
    -Parmesan Cheese
    -Adobo

    Any of these with a good dose of real butter are fantastic. (Butter, yeast & soy sauce, or butter, soy sauce, & Parmesan cheese are superb combinations.)

    I have had to lay off the popcorn due to indigestion/ over indulgence. I have moved on to Pop Tarts, baby carrots, Apple Cinnamon Cheerios, frozen Gogurts, and sliced deli meats and my favorite cheeses.

    This comment was inspired by sprinkled hints of popcorn fatigue throughout the blogging communities.

  24. Michael Donnelly  •  Apr 17, 2013 @7:16 am

    To Mr. Weaver's point above about really hurting Prenda:

    Do we have an over/under before folks begin speculating that no damages will ever be received, due to the underlying entities (people/corporations) being completely gutted? This whole debacle feels like a very familiar script, and it always ends that way.

    I say we put the line at 60 days.

    Also, I'll take the under. ;)

  25. htom  •  Apr 17, 2013 @7:37 am

    I have this image in my head of cockroaches scurrying about, and one of them stops, pointing and shouting "RAID!" "JUDGE WRIGHT!"

  26. MattS  •  Apr 17, 2013 @7:38 am

    Ken,

    "The wheels grind slowly. But they grind. They grind."

    I here by nominate you for the understatement of the year award.

    Not only has Prenda Law been ground, someone shipped the Prenda flour to CERN where it was loaded into the LHC. The resulting cloud of quantum particles is slowly dissipating into the nothingness from whence their clients came.

    :-p

  27. Nate2002  •  Apr 17, 2013 @7:42 am

    My favourite line in that anti-SLAPP:

    "Plaintiff’s defamation claims ring as hollow as its principals’ collective heads"

    lol.

    I really hope Judge Wright slaps them with financial sanctions that not only pay fees but compensate those ISP subscribers who've been dragged into Prenda's games as does. Would the same allow those who settled or had judgements against them in the past to file a claim for financial relief too?

    This whole case is fascinating and I'm so glad to see the ground falling from under their feet. I don't think the Prendacrew realised that they were not just shooting themselves in one foot, but actually both feet and kneecaps when they plead the 5th in this case.

  28. Joseph Ratliff  •  Apr 17, 2013 @7:44 am

    "And for only $19.95 you can get my newest DVD… 'How To GAIN 45lbs in 3 months by eating popcorn and watching a questionable business implode!"

    Love the coverage Ken.

  29. Nicholas Weaver  •  Apr 17, 2013 @7:48 am

    Michael: Don't make that bet. You'll lose. And lose bigtime.

    The shells, such as Ingenuity 13, are already gutted, they have no assets other than the (forged?) copyright assignments they are suing over. And even a law-firm is pretty easy to gut the assets from. Yet they are still vulnerable to "piercing the corporate veil" to target individuals.

    Also everyone going for sanctions/damages is targeting the law firms and individual lawyers in both jointly and severally, because it is so easy to gut the companies. Yet its really hard to gut an individual's assets to avoid paying, while maintaining a decent lifestyle.

    True, if you want to live in a $140K home in Tucson backed up to a strip-mall, and drive around in a 2004 Prius you can escape having to pay the costs due to poverty. [1] And since legal judgements can survive bankruptcy in many cases, you'd have to live like this for the rest of your life.

    But this is hardly the lifestyle suitable for lawyers who've collected $15M (give or take) in "settlements". So what good is your money if you can never access it?

    So the individuals: Gibbs, Duffy, Steele, etc… are in a seriously tight spot and they can't just hide the money.

    This is also, amongst other things, why Duffy made a huge mistake leaving him open to Minnesota's SLAPP-back. There's no need for "joint and severally" arguments or piercing corporate veils here.

    [1] Which is why I bet that Charles Carreon appeals until he's forced to put up a bond, and, in the end, never pays.

  30. Nicholas Weaver  •  Apr 17, 2013 @7:59 am

    The other thing is the future game plan. these cases can have manageable fines. Perhaps a few hundred grand in the worst case. So why fight so hard?

    Gibbs needs to keep his license. He didn't get much money from this compared to the others, so if he got disbarred he's screwed. Thus his bus-throwing talents may really come into play: his goal is to make sure that it is the others who take the fall.

    Duffy, Steele, and Hansmeier have a different worry. IF just everything would go away for a few hundred K$, they'd be happy. Heck, they could lose their licenses and still be happy, they got enough money to retire now.

    Except there is still one more shoeanvil that can drop. If Judge Write's order is as ugly as the trio fears, it may very well result in one or more class action suits seeking to claw back the settlements, class actions targeting them as individuals, not just their law firm and corporate shells.

  31. naught_for_naught  •  Apr 17, 2013 @8:02 am

    As one of the last 10 people on the planet to have no exposure to A Game of Thornes my mind went to different place at reading, "But he's a scrapper, our Mr. Duffy."

    None shall pass.

  32. MCB  •  Apr 17, 2013 @8:13 am

    "It also suggests that Pietz should update his mac: Snow Leopard is effectively "End Of Life" and no longer well supported by core security updates."

    In some cases, like the computer I am typing this on right now, you can't update past 10.6 :).

  33. MCB  •  Apr 17, 2013 @8:18 am

    "Except there is still one more shoeanvil that can drop. If Judge Write's order is as ugly as the trio fears, it may very well result in one or more class action suits seeking to claw back the settlements, class actions targeting them as individuals, not just their law firm and corporate shells."

    There is an even heavier shoe lurking out there: prosecution by the US Attorney for the Central District. If (and this is a big if) the entire scheme is essentially a mail fraud through the courts, then Big Brother can grab all of their assets via civil forfeiture.

  34. Michael Donnelly  •  Apr 17, 2013 @8:21 am

    Well, poop. I mean, it's too bad that we can't count them as already gutted and I'll need to come up with another pointless bet.

    I was unaware that they had "earned" so much money with their scheme. Proper application of the statute is something I find shockingly cruel and unusual (Thomas-Rasset/Tenenbaum). When it's wielded as a threat to extract settlements, it's just plain horrible. In the case of Prenda, where even that level of destruction is below the waterline, it's simply Wrong. Just out and out Wrong.

    I imagine that sentiment is why we see so much interest from the Internet at large, since it presents a pretty darn big injustice that is in need of righting.

    I'll keep my fingers crossed for a class to form. Or some proper criminal investigations. Unfortunately, Ken is probably very much spot-on with the slow grinding warnings. But slow grind is better than no grind.

  35. mcinsand  •  Apr 17, 2013 @8:22 am

    This reminds me of a business plan that I joked about when an employer in the '90's was looking at layoffs. The big ticket item then that everyone bought after the first positive pregnancy test was a camcorder. So, my 'plan' was to get a job at one of the big box electronic stores and a box of straight pins. Then, a few months after pinning condom boxes at the drug stores, I could just let the commissions roll in.

    What if that is what Prenda is all about? What if some enterprising popcorn vendor has come up with a plan to drive up sales by setting this soap opera into motion?

  36. Luke  •  Apr 17, 2013 @8:26 am

    @Lucy – Might I suggest Sriracha Popcorn? http://www.jdfoods.net/products/sriracha.php

  37. princessartemis  •  Apr 17, 2013 @8:28 am

    "Prendarasts". You have such a way with words!

  38. Ygolonac  •  Apr 17, 2013 @8:33 am

    Meanwhile, at PrendaHat…

    It's really a bad sign when Mister Notalawyer can read a simplified report on your actions, and immediately think "Y'all done fscked up, son."

    And be proven correct.

    And start following even the extended commentary, just for more amusement, and verification of the initial analysis.

    (This message has been sponsored by the National Popcorn Council)

  39. Nick  •  Apr 17, 2013 @8:44 am

    Speaking of the US Attorneys' office and the amount of money that the prinicpals seem to have made: I'm quite surprised that they have not casually disappeared to the remote regions of the south pacific or central asia. I assume that the group is sitting on 8 figures of money located somewhere in the world. Surely enough to keep a few pesky bounty hunters at bay, right?

  40. Another anonymous NAL  •  Apr 17, 2013 @8:52 am

    Everybody sing:

    Oh, the wheels on the bus grind round and round…..

  41. Ygolonac  •  Apr 17, 2013 @9:07 am

    "Oh, the wheels on the bus grind round and round…."

    New Prenda Law tag.

  42. Jim Tyre  •  Apr 17, 2013 @9:16 am

    Some folks might be interested in the result of a recent trademark troll case. (Yes, there are trademark trolls as well as copyright trolls and patent trolls.) The facts are much different, but in ordering sanctions against the troll lawyers, the Court wrote this, which might seem familiar:

    Upon consideration of Defendants’ motion papers, the Court is convinced that this was nothing more than a shakedown suit. This observation is based not only on evidence presented by Defendants, but also on the Court’s own interaction (or lack thereof) with Slep-Tone. (See e.g., ECF No. 89 dismissing case with prejudice for Slep-Tone’s failure to prosecute).) Overall, the court finds that Slep-tone prosecuted this case to maximize settlement recovery for a minimum amount of work. Ordinarily, such behavior is frowned upon but acceptable. But in this case, Slep-Tone takes trolling to the next level and essentially ignored all requests for discovery, explanations of exculpability, and requirements to act in good faith.

    Why of interest here? Because the Judge who wrote that and who sanctioned the troll lawyers is Judge Otis D. Wright II.

    http://soundchoicelasvegaslawsuit.com/los-angeles-court-orders-slep-tone-to-pay-suganos-attorneys-fees-by-a-date-certain/

  43. Paige (@Undertheradar76)  •  Apr 17, 2013 @9:24 am

    Try PrendaPop- now in Lawsuit flavor!
    https://pbs.twimg.com/media/BG4KS9dCEAEiFF_.jpg

  44. Michael Mock  •  Apr 17, 2013 @9:27 am

    "The wheels grind slowly. But they grind. They grind."

    …And I have to say, however frustratingly slow the process, I'm damned glad to see them doing so.

  45. RavingRambler  •  Apr 17, 2013 @9:43 am

    I've been thinking for a while now this was playing out like a John Grisham novel, and much like in "The Rainmaker" I'm guessing the money is already hidden/laundered/disappeared and no one is going to be able to recover squat. And that's a shame.

  46. naught_for_naught  •  Apr 17, 2013 @9:44 am

    "…those statements are about exactly the things that Steele and Hansmeier and Duffy took the Fifth rather than address. Duffy and Prenda can't carry their burden unless they reverse the decision to take the Fifth. "

    This is what I don't understand. How does their taking the fifth in one court on one proceeding prevent them from giving testimony on the same facts in a different proceeding in a different court? I thought courts allowed for that sort of inconsistent behavior.

  47. Clownius  •  Apr 17, 2013 @9:52 am

    They would also consider the testimony given in said other court i believe.
    Leaving them rather open to more trouble.
    In fact i believe people have been digging up stuff from other courts for the Judge already :)
    Prenda's story has changed many times it seems.

  48. naught_for_naught  •  Apr 17, 2013 @9:58 am

    "if you want to live in a $140K home in Tucson backed up to a strip-mall, and drive around in a 2004 Prius…"

    Get out of my head, will you?

  49. z!  •  Apr 17, 2013 @10:00 am

    @sjd

    So my advice to all the Does who still receive calls from Mark Lutz [...] plead the Fifth and hang up.

    Oh, no- "On the advice of council, I can not talk to you. Good Bye."

  50. Dan Weber  •  Apr 17, 2013 @10:02 am

    Okay, I read the expert witness's statements on the PDFs, and I agree with what's in it, but why is it relevant? It witness didn't say (and probably shouldn't have; that's the lawyer's job).

  51. orvis barfley  •  Apr 17, 2013 @10:02 am

    interesting to me how the various sub-plots have all conspired to their own momentary needs with no apparent thought that anyone might ever weave it all together into a carpet that won't support their weight, due, in large part, to the ways many of the sub-plots were at cross-purposes to each other.  it's like fighting several skirmishes all at once where the shelling you do in one fight lands on you in another one.

    just wow.

  52. Michael Mock  •  Apr 17, 2013 @10:10 am

    @ RavingRambler – "I've been thinking for a while now this was playing out like a John Grisham novel, and much like in 'The Rainmaker' I'm guessing the money is already hidden/laundered/disappeared and no one is going to be able to recover squat."

    Except that somewhere out there is that one Nigerian bank manager who knows exactly where the money is, and keeps trying to contact American law enforcement agencies about it… only to have his emails dismissed as the most obvious of phishing scams.

  53. Steve  •  Apr 17, 2013 @10:13 am

    Pietz & team have really good researchers/paralegals working for them: check out Page 8 of Pietz's reply, on which this gem appears:

  54. Dan Weber  •  Apr 17, 2013 @10:13 am

    IANAL, but sometimes if you plead the Fifth on something, if you talk about that something under oath again, that's waiving your right to plead the Fifth any more on that subject.

    On maybe that was just a HUAC scare. There's this testimony before HUAC:

    I am advised by counsel that if I answer the committee’s questions about myself, I must also answer questions about other people and that if I refuse to do so, I can be cited for contempt. My counsel tells me that if I answer questions about myself, I will have waived my rights under the fifth amendment and could be forced legally to answer questions about others. This is very difficult for a layman to understand.

  55. DonaldB  •  Apr 17, 2013 @10:16 am

    I predict that no money will ever be returned to the people wronged in this case.

    I don't believe that there ever was very much money sitting around at Prenda, and by now any excess has been moved.

    The profitable part of the business was the quick settlement, where payments went directly to Prenda. Most of that was likely immediately paid as salary, rather than being sent to Nevis and risk tax consequences. There was no reason to keep any in reserve.

    In mid-2012, when the found they would have to file in court to appear legitimate, they seem to have taken a franchise approach. Most of the money, as much as 75%, was to go to local lawyers that filed locally and did all of the detailed work.

    My guess is that all of the Prenda lawyers, as individuals, have made themselves judgement-proof. Houses are held by family members, cars are leased, etc. We even have a little hint that they are cleaning up loose ends: we know Steele sold his house in February because he got his real estate agent to make a statement about Cooper.

    I'm not even optimistic about lasting sanctions. Gibbs will probably be suspended from the bar for a short time, measured in months. The rest will probably appeal until their traceable bank accounts run dry, and be suspended for six months to a year at most. With the money gone, no one will be motivated to pursue a judgement.

  56. Andrew  •  Apr 17, 2013 @10:30 am

    Typically, when the Minnesota Supreme Court suspends a lawyer, the lawyer has to meet conditions and apply for reinstatement. Some of the conditions are pretty standard (e.g., meet CLE requirements and retake the ethics portion of the bar exam). However, I wouldn't be surprised to see a condition that restitution needed to be made before a reinstatement, or at least that a condition of reinstatement would be to adhere to an approved payment plan. Also, Minnesota will often impose reciprocal discipline, so a lawyer suspended elsewhere will receive the same suspension in Minnesota.

    If I'm not mistaken, Hansmeier at least is a Minnesota lawyer and is the registered principal of Alpha Law, according to the Minnesota Secretary of State website. Law firms must be owned by lawyers, so unless he gets rid of the "firm," a suspension would at least put Alpha Law out of commission. I'm not sure about any of the others.

    Also, @DonaldB: I thought no one got paid any salary at Prenda. That's what the deposition said, right? Hmm…

  57. Fredric L. Rice  •  Apr 17, 2013 @10:48 am

    Is it too much to hope for that Duffy and other Prenda people actually see any jail time for their alleged RICO predicate acts? Any hope at all? I would hope that *some* District Attorney is looking at these shitbags at the behest of Judge White.

  58. SJD  •  Apr 17, 2013 @10:57 am

    Ah, attorneys…. Ken still gives a benefit of doubt to Duffy and speaks about Duffy-signed pleadings as he has authored (and even read) them. In my opinion, Duffy is involved in Prenda ten times less than Gibbs was. Yes, Duffy sometimes appears in courtrooms to maintain the illusion of being a “sole principal”, but only when there is no excuse to pass. In the past, he either evaded appearances or came with Steele, and Steele did all the talking. Again, it is my opinion, and I may be wrong.

  59. Fredric L. Rice  •  Apr 17, 2013 @11:08 am

    …in San Francisco a federal judge has ordered Paul Duffy to appear personally in response to arguments about Prenda Law's conduct.

    Do Judges do this in order to have ready access to someone that the Judge might consider remanding in to the court's custody? Is the Judge in this case wanting the man physicaly present so that he can be charged and held for crmies against the court, perhaps?

  60. Fredric L. Rice  •  Apr 17, 2013 @11:16 am

    @Lucy, Is there anything else that can be filed by anyone to delay judgement day?

    Yes, Prenda Law's lawyers can all fake their own deaths to avoid what's coming. :) Short of that, from what I have been reading it appears that Prenda's lawyers have hung their petards very well, looks like escape is going to be rather difficult for all of them, short of faking their own deaths. :)

    Popcorn indeed.

  61. Mark  •  Apr 17, 2013 @11:47 am

    ""…those statements are about exactly the things that Steele and Hansmeier and Duffy took the Fifth rather than address. Duffy and Prenda can't carry their burden unless they reverse the decision to take the Fifth. "

    This is what I don't understand. How does their taking the fifth in one court on one proceeding prevent them from giving testimony on the same facts in a different proceeding in a different court? I thought courts allowed for that sort of inconsistent behavior."

    They CAN give that testimony any time they want, to any Court they want, if they so choose. They just DON'T want to give it, which is why they took the Fifth.

    Taking the 5th doesn't forbid them from giving testimony, it means that they cannot be compelled to. However, any testimony they willingly submit to another Court could be brought before Judge Wright and submitted as evidence, making their decision to plead the 5th in front of him completely pointless.

  62. Trebuchet  •  Apr 17, 2013 @11:57 am

    You might want to grab a sandwich; there's a lot going on, and this will take a while.

    Grabbed. Turkey and Havarti on sourdough with a side of ground Prenda. What's not to love?

  63. mcinsand  •  Apr 17, 2013 @12:02 pm

    @Fredric Rice:

    >>Short of that, from what I have been reading it appears that
    >>Prenda's lawyers have hung their petards very well,

    Are you saying… are you really saying… that Prenda's petards are well hung?

  64. nlp  •  Apr 17, 2013 @12:45 pm

    Prendateer.

  65. Nobody  •  Apr 17, 2013 @12:45 pm

    > In Arizona a defendant is updating a judge on the Prendateers' invocation of their right against self-incrimination.

    You made me thing of an old theme song:

    "We're the Prendateers, you can be one too.
    Because suing our planet is the thing to do!"

  66. John Beaty  •  Apr 17, 2013 @1:32 pm

    Just because I can't resist nitpicking:
    @Frederick L Rice: "Prenda's lawyers have hung their petards very well"

    A petard is a small explosive charge, not a gallows or similar. The expression is, "hoist by (or with) your own petard", not "on".

    "For 'tis the sport to have the enginer
    Hoist with his own petard, an't shall go hard
    But I will delve one yard below their mines
    And blow them at the moon."

    Hamlet Act 3, scene 4

    A pet peeve, petted!

  67. i was a john doe  •  Apr 17, 2013 @3:46 pm

    "if you want to live in a $140K home in Tucson backed up to a strip-mall" I'll have you know that i bought my house in Tucson 1 block from a strip mall for only $90k, $140 is overpriced in our crazy housing market. that being said, many people claim that the money is stashed somewhere. i doubt that. steel has been traveling the country buying new vacation properties all over and buying $100k cars. (as stated by his twitter account that he kept deleting and re-creating) i doubt very much that he has a huge hedged savings somewhere. hansmeir may but this whole mess will probably leave steel broke when the dust settles.

  68. MattS  •  Apr 17, 2013 @4:05 pm

    nlp, Nobody;

    When this is all over there will be Prendatears.

  69. Matthew Cline  •  Apr 17, 2013 @4:31 pm

    @DonaldB:

    Most of that was likely immediately paid as salary, rather than being sent to Nevis and risk tax consequences.

    But some of the principals involved have claimed to have worked for free. If they actually were paid, the IRS will come down on them like a ton of rectangular building things.

  70. Anonymous  •  Apr 17, 2013 @5:01 pm

    Can the IRS really believe they worked for _free_? I don't think so…

  71. That Anonymous Coward  •  Apr 17, 2013 @5:03 pm

    @SJD – OHAI! Would a better answer to Lutz's calls be, I'll answer your questions as soon as your boss answers Judge Wright's?

    The irony of an exhibit QQ.
    As your most likely not gamers QQ Noob is how online taunters tell Noobs to quit crying as Q looks like a tear from an eye….

  72. teiglin  •  Apr 17, 2013 @5:05 pm

    Another good read, as usual. I wanted to inquire if anyone else has ever seen the word "bullwark"–it's probably just a typo but I suppose it could be an alternate spelling. :)

  73. DonaldB  •  Apr 17, 2013 @5:11 pm

    My understanding is that everyone associated with AF Holdings, etc. "worked for free". That avoided money being traceable through the holding companies, and being taxable by money flowing to and from Nevis.

    Instead all monies were paid out to related parties: Peter H's forensic firm, and to fund "future cases".

    With this theory, Nevis wasn't about dodging taxes or hiding money, but instead hiding ownership and control.

  74. Myk  •  Apr 17, 2013 @5:24 pm

    @Nicholas Weaver:

    So what you're saying is that an opportunity exists in the near future for a class action lawyer, or possibly a professional CA objector? I may know a guy; should I forward his details to the Prendacrobats?

  75. MattS  •  Apr 17, 2013 @5:31 pm

    Prenda Law may they Rest In (very very small) Pieces

  76. That Anonymous Coward  •  Apr 17, 2013 @5:44 pm

    Hurm this was recently spotted on Google maps…
    Does anyone know where Mr. Gibbs is?
    Has there been foul play?

    (look tongue firmly in cheek)

  77. ChrisTS  •  Apr 17, 2013 @6:30 pm

    mcinsand: Are you saying… are you really saying… that Prenda's petards are well hung?

    Wheh!

  78. That Anonymous Coward  •  Apr 17, 2013 @6:43 pm

    So remember when I was having great fun tearing apart the Chin declaration filed by Prenda before? I'll wait…
    http://www.popehat.com/2013/04/08/prenda-law-prenda-duffy-and-van-den-hemel-respond-to-judge-wright/#comment-1018330

    Well I bopped by Dietrolldie and they updated a review of the submissions… and well someone did some digging into Mr. Chin and well… I should feel bad for stomping on a kid I guess…
    http://dietrolldie.com/2013/04/15/prenda-expert-declaration-aka-no-absolute-certainty-of-identifying-infringer-212-cv-08333/comment-page-1/#comment-12311

  79. Michael K.  •  Apr 18, 2013 @10:38 am

    Morgan Pietz is looking like a rockstar.

  80. Richard O  •  Apr 18, 2013 @12:49 pm

    @TAC – QQ is commonly used to denote crying eyes, but that isn't where it originated. From the Urban Dictionary:

    Contrary to popular belief, QQ is not a set of crying eyes. It actually originated with the advent of Warcraft II. On battlenet, you could press ALT+Q+Q to immediately exit the match and program. Thus the term "QQ" was to tell people to just quit because they are unskilled. The term later developed and lost it's origin and is usually mistaken as crying eyes.

    This agrees with what my kids tell me.

  81. Nick  •  Apr 18, 2013 @2:25 pm

    So did anyone sit in on the Paul Duffy appearance in the Northern District today?

  82. SJD  •  Apr 18, 2013 @2:34 pm

    @Nick: Yes, @kurtopsahl of EFF is there, and he tweeted that Duffy did appear.

  83. Quote of the Day  •  Apr 18, 2013 @2:47 pm

    Quote of the Day:

    "Notably, a court in a civil matter is free to draw reasonable inferences from a defendant (or, in this unprecedented situation, a Plaintiff’s) decision to plead the fifth."

  84. Anonymous  •  Apr 18, 2013 @2:59 pm

    Rosing's latest filing sounds like Prenda's lawyering has rubbed off on her.

    Bordering on hysterical gibberish; Accusing Pietz of not really representing someone is just pathetic, Prenda's goofballs tried that when they were litigating this case themselves, but I am astonished that an apparently professional attorney would go there. I was also unable to follow the tortured logic of how the fact that a John Doe defendant is the defendant (because that's the person Prenda chose to sue and harass) somehow proves that Prenda is actually right about everything just because Pietz is representing someone? And there is but there isn't a defendant? Or maybe? Or something?

    I admit I only tried to parse the argument twice but both attempts ended in failure. Um, this dude hired Pietz because Prenda decided to file a lawsuit and at least threaten to name him as the defendant, Rosing seems to be forgetting she represents the plaintiff in this case (I know it's hard sometimes, but she's payed to remember with all that delicious settlement money). And am I the only one who can't remember when Pietz or anyone else claimed Prenda's methods were insufficient to identify a SUBSCRIBER? I don't, because I'm sure nobody ever made that claim. At this point she is arguing that the person her client harassed doesn't have a right to representation, which is again par for the course for Prenda Senior Partners, but shameful and shameless from a real attorney.

    I don't know what her game is there, if she thinks the threat of identification will make this John Doe back off and magically make her clients' problems go away, but she will be in for a really nasty surprise if she pushes this and Pietz just files all the settlement correspondence Prenda sent to Pietz' client without ever bothering to attempt to identify and then name a defendant, and this is something he could likely do under seal.

    Is it possible they are trying to push this into a criminal proceeding because KLINEDINST PC will make a ton of money that way? I suppose with corporate clients there may be a lot of deep pockets, but I'm thinking this situation may present a possibly irresistible, unusual windfall for a law firm. How often do clients show up and say "Yo, we got $15 mil in the bank we made through this scheme that is totally blowing up in our faces. Here's a blank check just keep us out of jail!!!"

    I know this is a law blog and there is a desire to try to see the noble side of the profession, but I am sympathetic to Adam Smith's view of human motivations, regardless of one's profession.

  85. SJD  •  Apr 18, 2013 @3:38 pm

    According to a @kurtopsahl's tweet,

    #prenda Hearing ended in AF Holding v. Does in SF. Notable point: Duffy says owner is "Salt Marsh," a trust.

  86. MCB  •  Apr 18, 2013 @3:39 pm

    Anonymous:

    She's got to defend her client. She is ethically obligated to try to do so as best she can. The idea is that whatever the best arguments that are possible will be before the judge so that he/she can make of his/her mind confident that the case has been fully argued. Sometimes that means making losing arguments.

    She got into the cockpit of Air Prenda as it was about to crash directly into Mt. Wright. She is doing what she can to restart the engines, but it is likely too late. It's hard to be too critical of her because she is limited in what she can do.

  87. MCB  •  Apr 18, 2013 @3:40 pm

    #prenda Hearing ended in AF Holding v. Does in SF. Notable point: Duffy says owner is "Salt Marsh," a trust.

    Oh god no. Not again.

  88. Anonymous  •  Apr 18, 2013 @4:01 pm

    OK, then what evidence does she have that Pietz doesn't have a client?

    When did anyone ever state that an IP address was insufficient to identify a subscriber?

    When did Brent Barry make a claim or did any of the text messages he provided actually mention AF or any cooperation between Steele and Cooper?

    Since when were these proceedings ever criminal, when did Pietz claim that, and why is it his responsibility to argue otherwise?

    Sorry but I'm running out of sympathy for this "Oh well lawyers can just lie to the cort and stuff because lawyers" permissiveness that has led to lawyers acting like Prenda. If she can't make an argument that's true, she shouldn't be making any argument at all.

  89. Raul  •  Apr 18, 2013 @4:05 pm

    @Anonymous – Pietz's client is no great state secret and Rosing/Prenda are being disingenuous on this point because Prenda has his identity. Likewise because they know who he is and, accordingly, his relative financial circumstances they are flat out lying to suggest Pietz is being funded by the EFF.

  90. MCB  •  Apr 18, 2013 @4:08 pm

    "Oh well lawyers can just lie to the cort and stuff because lawyers"

    Is that what I said? It didn't seem like what I said…

  91. Anonymous  •  Apr 18, 2013 @4:19 pm

    That's not what you said, and I don't mean to suggest that you believe that, but that appears to be a basic attitude of the legal profession. I have only really seriously followed any legal proceedings as a result of Prenda, and as someone with a scientific/engineering background I am absolutely aghast at what appears to be everyday bullshitting that goes on.

  92. Damian  •  Apr 18, 2013 @4:28 pm

    @Anonymous … This Prenda stuff is definitely NOT standard everyday bullshitting, not by a long shot.

  93. MCB  •  Apr 18, 2013 @4:33 pm

    I'd say judging the legal profession by the conduct in these cases would be hasty. You are seeing extremely unethical conduct, that I would wager will get the principle attorneys disbarred.

    From Rosing, I think you are seeing the best arguments she has available to try to save her clients from (a) sanctions, (b) disbarment and (c) criminal prosecution. And my view is that the focus is really on (c) at this point because they are already wrecked on (a) and (b). If she thought they were going to win on (a) and (b) there is no way they would have taken the Fifth.

    For example, she is arguing than an adverse inference can't be drawn in a criminal proceeding on taking the Fifth (true) and that this is now criminal because of Judge Wright's interest in sanctions (maybe true for criminal sanctions, I would be shocked if it's the case for civil). Why is she making that argument? Because she cannot ethically just say "yeah, hammer away my clients are douche bags." It's the best she's got. She's not misrepresenting any cases to make the argument, at least so far as I know. She isn't lying to the court. She's just making a bad argument.

    And that kind of argument isn't likely to be very damaging to anyone here. Wright isn't some idiot who is going to get confused by this. But it might make him hesitate about criminal sanctions, which would probably best be left to the US Attorney anyway.

  94. SJD  •  Apr 18, 2013 @4:47 pm

    @MCB While agreeing on your first statement ( "judging the legal profession by the conduct in these cases would be hasty" ) and many others, I'm confused: how she is not misinterpreting facts given a couple of clear examples by (mysterious) Anonymous and Raul??

  95. MCB  •  Apr 18, 2013 @5:02 pm

    @SJD,

    I don't read her hastily written argument the same way they do. But, here, I'm hesitant to comment because I don't know anything about the law with respect to trying to defend someone who has not actually been named in the suit. I think her argument really boils down to the view that he needs to name someone to actually be defending them, that you can't be defending a nebulous Doe who could be the IP subscriber, or someone else who was using the IP at that time (and I take her use of subscriber to be bad writing rather than some attempt to misrepresent the issue). I really can't comment on this argument, but my guess is that it also is a loser.

    I think her attack later in that paragraph on the EFF is just ill-advised. I smells of desperation to me.

  96. Dan Weber  •  Apr 18, 2013 @5:35 pm

    If Chin is actually a minor, that is a, um, major issue.

    If Chin is above 18, but young, then there's no pointing trashing him for being young.

  97. Matthew Cline  •  Apr 18, 2013 @5:57 pm

    @Anonymous:

    I don't know what her game is there, if she thinks the threat of identification will make this John Doe back off and magically make her clients' problems go away,

    I don't think it would work out that way, since Pietz could prove to the judge that his client exists and is legitimate, without having to unmask the Doe to the world.

  98. Jim Tyre  •  Apr 18, 2013 @5:58 pm

    While you're waiting for coverage of today's Prenda hearing in San Francisco, EFF's motion to quash the subpoena in the libel suit seeking the identity of Die Troll Die may interest you.

    https://www.eff.org/deeplinks/2013/04/eff-moves-quash-subpoena-copyright-trolls-retaliatory-lawsuit

  99. SJD  •  Apr 18, 2013 @6:05 pm

    DieTrollDie's registrar is in the USA (unfortunately). Mine is a harder nut to crack:

    We have never ever released our customer’s details to a third party. The only way to obtain personal details about our customers would be through a Bahamas’ court order and it is extremely unlikely it will ever happen as the Bahamas is enforcing privacy by our constitution and breach of privacy could result in severe penal consequences. We are proud to say that our Private Whois is a real protection, while the equivalent service provided by an US based registrar is not really protecting you as a simple subpoena would immediately force your registrar to release your personal data.

  100. Paige (@Undertheradar76)  •  Apr 18, 2013 @7:08 pm

    Oh Jeebus- "Salt Marsh" is back in the picture! Love it!
    I'm half-expecting Michael Dorsey to show up, pull off the wig and reveal he's Edward, not Emily Kimberly…

  101. Jim Tyre  •  Apr 18, 2013 @7:52 pm

    ArsT now has its article up about today's San Francisco hearing.

    http://arstechnica.com/tech-policy/2013/04/prenda-law-may-be-hit-with-attorneys-fees-in-sf-case/

    It mentions that defense attorney Nick Ranallo spoke with some EFF people after the hearing. Obvious proof of EFF sponsorship. And my understanding is that Cathy Gellis, who is an excellent lawyer and who was at the hearing, will be guest blogging here. Cathy was an intern at EFF some years ago, which must mean that we (EFF) are sponsoring Ken. Or he us.

  102. That Anonymous Coward  •  Apr 18, 2013 @10:00 pm

    @Richard O – I sit corrected. The internets, it mislead me…

    @Dan Weber – I might feel bad if he is not of age, but one has to assume he was paid for his expert testimony (as lacking as it was) and for me its game on.
    Somewhere it claims he has a BA, but puffery of web resumes isn't exactly new. But then I'm used to looking into companies that exist as not much more than PO boxes.
    A majority of his book report on the subject is ZOMG the headlines claim all of these horrible things, look at these horrible things and ignore the men at plaintiffs table taking the 5th. Focus on 500,000 movies A DAY! Ignore that plaintiff's might not actually represent anything that holds valid copyrights in a collection of well less than 500,00 or even 20.

    Interesting Net Force is not the actual full legal name of the company.
    There is 1 almost viable hit in the CA database…
    http://kepler.sos.ca.gov/
    Entity # – 201203410039
    Based in Nevada.
    Formed 02/02/12
    I lock onto this name as the last name matches 2 of the employee's listed on the Net Force website.
    You might think your cool enough to just be Net Force, but the several inactive records using that name aren't helpful for those who would question ones background.

    @SJD – it is nice to see the EFF being active, pretty sure I'm still sorta mad at them, but glad to see them in the game now.

  103. Erictehundying  •  Apr 19, 2013 @9:46 am

    @John Beaty
    '"For 'tis the sport to have the enginer
    Hoist with his own petard, an't shall go hard
    But I will delve one yard below their mines
    And blow them at the moon."'

    You are also missing something that might be of specific metaphorical relevance to this discussion. In Shakespeare's original, he rendered "petard" as "petar'", which evokes both the idea of the petard and the form from which it is derived, the Middle French "peter," meaning to break wind.

  104. James Pollock  •  Apr 19, 2013 @10:01 pm

    " I am absolutely aghast at what appears to be everyday bullshitting that goes on."

    This is not everyday bullshitting. This is the BIG LEAGUE of bullshitting.

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