Some legal threats are so very foolish that they prompt me to look around suspiciously, wondering if I am being punked.

Take this one: a researcher thinks that that he can bring civil and criminal charges against the proprietors of a web site for their report about him, even though he concedes the report was true, because of the web site's name.

Continue Reading »

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

When it comes to getting angry in federal court, perhaps I should not throw the first stone. After all, just a few days ago a federal judge was moved to tell me "Mr. White, calm down, you aren't arguing to a jury." [The result was nonetheless quite satisfactory, thank you.] And I rely upon partners and associates to tone my written work down. (A memorable example: "The SEC's proposed jury instructions find no support in the law or the facts of the case" is acceptable, "The jury instructions are not a vehicle for the SEC's attorneys to work out their self-esteem issues" is not.)

Nevertheless, I will offer this advice: don't file angry.

Attorney Jacques Nazaire, local counsel for Prenda Law putative client AF Holdings, has done just that down in Georgia. The result is not pretty.

I previously wrote about how Mr. Patel, a defendant in an AF Holdings case in federal court in Georgia, sought sanctions in response to AF Holdings' dismissal of the case. Jacques Nazaire has filed a very angry response and cross-motion for sanctions, together with Exhibit A, =Exhibit B, and Exhibit C. As we shall see, one of those is an extremely ill-considered declaration from mysterious Prenda Law figure Mark Lutz.

Many of Mr. Nazaire's arguments are now familiar: he says that there's nothing wrong with undisclosed attorney interests in plaintiff entities so long as the judge is not presented with a conflict of interest, and he repeats the now-familiar argument that it doesn't really matter if Alan Cooper's signature was forged on a copyright assignment.

But he also makes some interesting new arguments.

Underpants Gnome Logic

If I may briefly summarize a key component of Mr. Nazaire's argument:

1. We had a highly meritorious case against Mr. Patel.
2. Moreover, he defaulted, and that default should have stuck.
3. Plus he's made admissions that show he's liable.
4. ???
5. So we've dismissed the case with prejudice, and there's nothing to see here, other than to note how strong our case was.

Well okay then.

How Dare You Say I'm Brett Gibbs' Lackey!

Amongst other things, Mr. Nazaire is very irritated at the suggestion that he was taking orders from Prenda Law figure Brett Gibbs, and wants you to know that he is his own man, exercising his own judgment:

From what has been put forth, Brett Gibbs is a fairly new attorney much like Defendant’s counsel. The undersigned, on the other hand, has over 16 years experience practicing law, has settled over millions of dollars worth of cases, including state and federal cases and has also served in Afghanistan as a Foreign Claims Commissioner, settling foreign claims in a war zone.

The undersigned would not assign Brett Gibbs to negotiate a left turn with his vehicle, let alone a settlement on behalf of a client, regardless of whether the case was venued in Georgia, California or Afghanistan. While Gibbs may be a pleasant young man, to assert that Plaintiff’s attorney takes orders from Brett Gibbs is absurd and laughable.

I'm sure Mr. Nazaire is very highly qualified. After all, as Fight Copyright Trolls points out, only a highly-qualified lawyer would advertise on Craigslist to make court appearances at $125 a pop. Craigslist is widely respected as the best place to find an experienced litigator, a gently-used futon, or someone to dress up like Herman Goering and poop on you.

That aside, Mr. Nazaire's argument that he's not taking orders from anybody is an odd strategic choice under these circumstances. I appreciate his choice not to blame problems on Brett Gibbs. I appreciate the creativity of pulling Brett Gibbs out from under the bus in order to tell him that he sucks. But I'm not sure about the full-throated "I'm in charge but there's nothing to see here" approach by a local counsel at this point, once Prenda Law's principals have taken the Fifth. Has Mr. Nazaire truly slaked his thirst with the Prenda Kool-Aid? Or is he very politely sparing Mssrs. Steele, Hansmeier, and Duffy the bother of throwing him under a bus, as they have rather unconvincingly done to Brett Gibbs? How very collegial.

EFFFFFFFF! From Hell's Heart I Stab At Thee!

Mr. Nazaire, like many Prendateers, is very upset with the Electronic Frontier Foundation. He accuses Mr. Patel's lawyer of being associated with EFF, which he describes like it's some kind of terrorist group:

One other important fact for the Court to consider is Chintella’s role as a panel attorney for the Electronic Frontier Foundation (“EFF”). (See https://www.eff.org/issues/file-sharing/subpoena-defense). The overriding mission of the EFF has been to shield the Internet from effective regulation—“defending it from the intrusion of territorial government.” Jack L. Goldsmith & Tim Wu, Who Controls the Internet?: Illusions of a Borderless World 18 (2006). This mission relies on undermining effective enforcement of intellectual property rights. Purporting to speak on behalf of “cyberspace,” a co-founder of EFF (who presently serves on its board of directors) has warned the “Governments of the Industrial World” that “[y]our legal concepts of property, expression, identity, movement, and context do not apply to us.” John Perry Barlow, A Declaration of the Independence of Cyberspace (Feb. 8, 1996), available at https://projects.eff.org/~barlow/Declaration-Final.html (as of April 17, 2013).

The EFF is a left wing organization which has some of the same goals as the anti-government group “Anonymous” as well as the terrorist group “Wikileaks”.

It is amusing, in a dark way, that Prenda Law and its local counsel continue to portray themselves as the righteous defenders of intellectual property rights. Were that so, you might find support from them amongst attorneys and organizations in the business of bittorrent litigation and other pursuits of online pirates. You won't. At most, you'll find consternation that the Prenda Law enterprise has inflicted a grave wound upon the credibility of online piracy litigation across the United States.

Mr. Nazaire further accuses the EFF of witness tampering — excuse me, witness "tempering" — because he hears they paid for Alan Cooper's travel to and from Los Angeles. He demands:

4) An order requiring Defendant’s counsel, who is a member of the Electronic Frontier Foundation (EFF) to disclose the total amount of monetary benefits received by Alan Cooper from the EFF and its members, agents, colleagues and followers. Should the case not be dismissed, an order scheduling a hearing into possible witness tempering [sic] by the EFF.

Mr. Nazaire explains:

Additionally, it is reported on the internet that Mitch Stoltz, a staff attorney with the EFF has stated that EFF took care of Cooper’s travel arrangements to testify in a California case. As such, any statements made by Mr. Cooper should be suspect. There is no evidence to suggest that Mr. Cooper has worked an honest day in his life. Rather, it appears that Mr. Cooper has spent his lifetime depending on the kindness of others. Logic dictates that the more Mr. Cooper testifies against those opposed to the EFF, the longer he is allowed to travel from state to state.

There are several things you should note about this argument.

First, notice the alacrity with which Mr. Nazaire traipses from "Mr. Patel's claims are speculation not supported by evidence" to "it is reported on the internet."

Second, remember the context. Alan Cooper didn't travel to Los Angeles for kicks. He didn't travel as a voluntary witness to support allies. He went because United States District Judge Otis D. Wright II ordered him to appear. There seems to be no dispute that he's a man of modest means. His testimony made it clear that he finds the whole experience confounding and terrifying. The evidence suggests he was repeatedly threatened with legal ruin by the slick, entirely vile John Steele. Plus, despite Mr. Nazaire's insinuation, there is no indication he's gone anywhere else to testify, let alone been paid by the EFF to do so. Under the circumstances, the EFF funding an involuntary witnesses' travel — an involuntary witness who may be the victim of identity fraud — is a mitzvah. I leave it to reader to assess the relative character of the EFF for doing it and Mr. Nazaire for attacking it.

Third, consider where Mr. Nazaire's comments leave us with respect to Prenda Law's position on Alan Cooper: even if you take everything they say at face value (a prospect that exhausts the world's bounteous supply of drooling credulity), it means that AF Holdings chose, as an officer or representative to sign its crucial legal documents, a man who has not "worked an honest day in his life" and is mentally ill and dangerous. Nevertheless, they would have you believe, you should accept AF Holdings as a legitimate enterprise and the lawyers conducting litigation on its behalf as trustworthy. How appealing does that sound to you?

I Did It For The Lutz

Responding to accusations that AF Holdings is a front for Prenda Lawyers, Mr. Nazaire supplies an undated affidavit from Prenda Law paralegal Mark Lutz. Mr. Lutz swears that a trust called "Salt Marsh" owns AF Holdings, and that the beneficiaries of "Salt Marsh" are Mr. Lutz's hypothetical and yet-unborn future children. (Damn you, Prenda, for making me refresh my memory of the horror that is the Rule Against Perpetuities!)

You may recall that Paul Hansmeier — offered by Prenda Law as AF Holdings' witness most knowledgeable about its origins and ownership — was unable to explain the nature or beneficiaries of the trust.

Let's sum up, then, what we know about Mark Lutz, and by extension AF Holdings. Mr. Lutz has been identified as a former paralegal for Steele & Hansmeier, a predecessor to Prenda Law. He showed up in court as a "corporate representative" of another Prenda Law entity, Sunlust, resulting in this thoroughly embarrassing exchange:

THE COURT: Mr. Lutz, you're under oath, you have to give truthful answers or you face penalties of perjury. Do you understand that?
MR. LUTZ: Yes.
THE COURT: What is your position with Sunlust?
MR. LUTZ: I'm a representative of them.
THE COURT: What does that mean?
MR. LUTZ: Corporate representative.
THE COURT: What does that mean?
MR. LUTZ: They asked me to appear on various matters throughout the country.
THE COURT: Are you an officer of the company?
MR. LUTZ: I'm not, no.
THE COURT: Are you authorized to bind the company to any legal contracts?
MR. LUTZ: I am not.
THE COURT: Are you salaried?
MR. LUTZ: No, 1099.
THE COURT: So you are a 1099 contracted entity and you just go around and sit in a Court and represent yourself to be the corporate representative of the company?
MR. LUTZ: Yes.
THE COURT: Mr. Torres, did you know this was Mr. Lutz's position, a paid corporate representative?
MR. TORRES: No, Your Honor, I did not.
THE COURT: Who is the president of Sunlust?
MR. LUTZ: I'm unaware.
THE COURT: Who is the vice president?
MR. LUTZ: I'm unaware
THE COURT: Who is the secretary?
MR. LUTZ: I have no idea.
THE COURT: Who owns Sunlust?
MR. LUTZ: I do not know.
THE COURT: Who signs your checks?
MR. LUTZ: I believe somebody in the accounting department.
THE COURT: What is their name?
MR. LUTZ: To be honest with you, I can't read the signature.
THE COURT: Where is the accounting department located?
MR. LUTZ: I'm sorry?
THE COURT: Where is the accounting department located?
MR. LUTZ: I've received checks from California.
THE COURT: How much are you paid monthly to be the corporate representative?
MR. LUTZ: Again, it depends on my appearances, the number of appearances that I do.
THE COURT: How much were you paid last month?
MR. LUTZ: Approximately $1,000.

Moreover, Paul Hansmeier — acting as AF Holdings' most knowledgeable person (not, it would seem, a particularly high bar) testified that Lutz is the CEO or "manager" of AF Holdings, but is not paid anything for that position, and despite being AF Holdings' sole employee, has arranged for Alan Cooper (whom Prenda Law now says is a crazy violent ne'er do well) to sign copyright assignments on behalf of AF Holdings, because Mark Lutz is a busy man:

Well, it would be speculation as
to why AF Holdings took one action or another. I would
say that, for example, you know, Mr. Lutz is an
individual. There are a certain number hours in a day
and for him to accomplish everything he's going to
accomplish in any given day, or for anyone in any
capacity in any business, you rely on third parties to
aid you to accomplish various tasks.

Meanwhile, Mark Lutz — who showed up at a hearing before Judge Wright without counsel, and apparently showed up as a corporate representative in a court in Florida dressed like he was going shrimping afterwards — may or may not have children in the future, and if he does, those children will be the beneficiaries of the trust that owns AF Holdings, which, we are assured, is a perfectly legitimate business conducting good-faith copyright litigation to protect its interests in movies. Those movies, by the way, have never yielded any money except through litigation, and that litigation has only yielded money to the Prenda Law lawyers and their related "experts."

Nonetheless, Mr. Nazaire will have you believe, it is outrageous and sanctionable for Mr. Patel to seek sanctions and ask the Georgia federal court to conclude an inquiry into whether Prenda Law and AF Holdings have concealed the true ownership of AF Holdings.

Gentle readers: draw your own conclusions.

Sure, What The Hell, Let's Bring In Booking Photo Extortion Too

Showing the sharp wit and unerring eye for palatable arguments that characterizes his entire brief, Mr. Nazaire also launches a personal attack on Mr. Patel's lawyer Blair Chintella. In a salvo that I'm sure the judge will find pertinent and not at all gratuitous, Mr. Nazaire asserts that Mr. Chintella is pursuing his own interests rather than the interests of his client, and asserts that Mr. Chintella has an unreasoning grudge against John Steele (the same John Steele Mr. Nazaire suggests is entirely irrelevant to this case):

Mr. Chintella perhaps believes that Mr. Steele has spread Chintella’s mug shot, from a 2011 DUI arrest, across the Internet. However, Mr. Chintella’s mug shot was circulated by infamous websites that post mug shots from public arrest records and demand monetary payment for their removal (www.bustedmugshots.com and www.justmugshots.com). Nevertheless, Plaintiff believes that Chintella’s acrimony towards Steele is important context for the Court to consider when reviewing Defendant’s motion, which seeks, inter alia, substantial relief against Steele, even though Steele is not a party or attorney involved in this case. Plaintiff’s attorney has a copy of the mugshot and can provide the same to the Court if so requested.

Truly Mr. Nazaire's distaste for "extortion" is touching.

Mr. Chintella may be mildly and temporarily embarrassed that a 2011 DUI arrest has been emphasized in a pleading in federal court. I suspect, however, that transitory and mild embarrassment will pale compared to the impact Mr. Nazaire's connection to this matter will have on his reputation. Potential local counsel for Prenda Law or the Prendateers, take note.

If you're wondering whether Dzhokhar Tsarnaev was read his Miranda rights, and whether he should have been, and what the significance is if he wasn't, here are some posts to read:

Orin Kerr explains the law.

Lawscribe elaborates from a former PD's perspective and explains why Dick Wolf is full of shit.

Lindsey Graham is a jackasss.

So is John McCain.

Some background on the Obama Administration's position.

And finally, many of these people vote.

It will be worthwhile, I promise you.

This week Democratic Rodney Moore, of Mecklenburg County, introduced a bill that would make thousands of innocent North Carolinians criminals.  It would most definitely make me a criminal, for two reasons.

First, because I own this dog, and will likely own dogs of similar appearance in the future;

And second, because I would never obey Rodney Moore's command that I submit to a criminal background check and enroll in a four hour course sponsored by the Humane Society on responsible ownership of pit bulls, rottweilers, mastiffs, chows, and similar "aggressive dog breeds."

Three hundred and fifty years ago, King Charles II granted the charter that led to the founding of North Carolina. And for all three hundred and fifty of those years, North Carolinians have enjoyed the fundamental liberty of owning whatever damned breed of dog they please, without submitting to a criminal background check.

During that time, North Carolina has suffered the oppressions of King George III.  North Carolina has endured invasion by Sherman, and military rule by occupying federal troops.  North Carolina has been terrrorized by the Ku Klux Klan. North Carolina has been attacked by the dreaded U-Boats of Adolf Hitler.

But neither King George III, nor Sherman, nor any military governor, nor even the Ku Klux Klan and Adolf Hitler ever presumed to require a North Carolinian to submit to a criminal background check to own a dog. Without having to sit through a four hour class.

I daresay that if Rodney Moore's bill were to become law, the people of North Carolina would rise up, march to Raleigh, carry Rodney Moore from his seat in the Capitol, and dunk him into the nearest lake.

If Rodney Moore didn't know that at the beginning of this week, when he introduced his monstrous and intolerable act, he knows it now.

Any person who possesses an aggressive dog breed without passing a criminal background check and obtaining a permit is guilty of a Class 3 misdemeanor.

Stung by public criticism of his insolence, Moore now claims that he never expected the bill to pass.

Moore claims he just wanted to start a "worthwhile conversation."

Well let's have that conversation, Rodney Moore.  I'll start with a few questions.

When you asked the people of Mecklenburg, County, North Carolina to entrust you with legislative power, did you run on a platform that involved outlawing dog breeds you find offensive? Or did you feed them some claptrap about "maximizing the potential of sound policymaking decisions to enhance the opportunities and aspirations of the citizens of the State of North Carolina."

Is filing a bill that has no chance of passing, just because you want to start a "worthwhile conversation," a sound policymaking decision? Do people in Mecklenburg County elect representatives because they want to have conversations, or because they want representatives to propose sound laws that actually have a chance at passage?

As for the bill in question, is giving a Sheriff the power to require criminal background checks of potential dog owners, without specifying what crimes disqualify the applicant, a sound policymaking decision?  Does it "enhance the opportunities and aspirations of the citizens" to give the Sheriff such arbitrary discretion with respect to breeds that are disproportionately owned by the poor and minorities?  Without defining the term "pit bull"?

And should the people of Mecklenburg County, North Carolina evaluate your answers to these questions in deciding whether to return you to the House in 2014?

Patrick Frey, also known as Patterico, has been living under the cloud of a frivolous, censorious, and thoroughly contemptible SLAPP suit seeking to chill his First Amendment rights.

Today he won.

Background

Since last year it's been my privilege to work alongside the formidable Ron Coleman to defend Patrick pro bono against the federal lawsuit Nadia Naffe filed.

Ron and I filed motions seeking to dismiss Nafe's original federal complaint. In December United States District Court Judge George Wu granted our motion to dismiss, but without prejudice — that is, he gave Naffe once chance to amend to see if she could state a valid claim.

We moved to dismiss her amended complaint on a variety of theories. Today we won. Judge Wu's tentative ruling with the meat of his decision is here, and his order of today confirming his tentative is here.

The Issues and The Ruling

I'm not going to explain the legal issues at length. I attached all the pleadings from the first round of briefing before, and the pleadings this time are below. If you want to get a sense of the case, I recommend reading our anti-SLAPP motion, our Motion to Dismiss under Rule 12(b)(6), and Judge Wu's order.

In brief: Naffe sued Frey for a violation of civil rights by the state under 28 U.S.C. Section 1983 (on the frankly ridiculous and disingenuous theory that he blogs as a Deputy District Attorney rather than as a private citizen), invasion of privacy through public disclosure (because Frey published on his blog deposition transcripts that were available in public court records online), false light invasion of privacy, defamation, intentional infliction of emotional distress, and negligence. In her amended complaint she sued the County of Los Angeles on a theory of negligent supervision. She originally sued Patrick's wife for no discernible reason, and sued the former District Attorney of the County; this time it was just Patrick and the County. She had two theories of why she could be in federal court: because there was a federal question (her Section 1983 claim) and because there was diversity of citizenship (she's in Massachusetts, Frey's in California; diversity requires different states and at least $75,000 in damages).

We filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (which argues, essentially, that even if everything in the complaint were true, she hasn't described a legal wrong), an anti-SLAPP motion under California law (arguing that her state law claims were attempts to censor speech, and that she could not succeed on them), a motion to dismiss her state law claims under Rule 12(b)(1) (arguing that she can't show $75,000 in damages, as is required for federal diversity jurisdiction, so there's no jurisdiction over the state law claims if her Section 1983 claim fails), and a motion to force her to post a bond under California law (in California, you can make a plaintiff from another state post a bond to cover costs if you win).

Federal judges tend to be conservative with jurisdiction: that is, they take only cases they must, and address only issues they must. Judge Wu ruled that (1) Naffe can't succeed on her Section 1983 claim — her only federal claim — because she didn't state facts showing that Patrick was a state actor when he was blogging as "Patterico", and (2) he wouldn't exercise jurisdiction over the state law claims, because Naffe failed to show that she suffered at least $75,000 in damages, as required for diversity jurisdiction. Based on those rulings, the judge didn't need to reach the anti-SLAPP motion or the bond motion.

The Result

The result: the Section 1983 civil rights claim is dismissed with prejudice, meaning Naffe can't re-file it. The state law claims are dismissed, but Naffe could re-file them in state court if she wanted. If she does we will file an anti-SLAPP motion there as well — and a motion for sanctions against both her and her attorneys. Naffe has already filed a notice of appeal, suggesting she may pursue an appeal in the Ninth Circuit rather than re-filing in state court. Bring it.

The Conduct of the Case

One of the most frustrating things about the case was that Naffe and her attorneys misrepresented the content of relevant blog and Twitter posts to the Court to suggest that Patrick was purporting to blog in his official capacity as a Deputy District Attorney, when in fact the documents showed the exact opposite. The best summary of what I mean is at pages 9-11 of this brief and page 2-3 of this brief. Even though we made that point very strongly, Naffe — tellingly — did not respond at all in her opposition briefs. It's rather unusual not to answer an accusation that you've attempted to mislead a federal judge Judge Wu noticed it as well. We didn't raise the issue of sanctions, but he did on his own. In footnote 5 he noted:

In paragraph 39 of the FAC [First Amended Complaint] Plaintiff quotes Frey as saying the following: "You owe [O'Keefe] @gamesokeefeiii a retraction. A big one. You'd better issue it promptly. [A threat made as a Deputy District Attorney]." FAC 39. The Court may consider the text of Frey's actual statement in connection with a Rule 12(b)(6) challenge. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006), Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001.). Notwithstanding Plaintiff's use of quotation marks, the language "[A threat made as a Deputy District Attorney]" does not appear in Frey's actual comment. See Frey Decl. (Docket No. 40), Exh. KK, at 266. The Court would consider issuing sanctions against Plaintiff and/or her attorneys for the contents of paragraph 39. [emphasis added]

And there's footnote 7. Noting that Frey wrote a tweet saying "My first task is learning what criminal statutes, if any, you have admitted violating," Judge Wu wrote:

In her Opposition brief, Plaintiff characterizes this as "Frey issu[ing] a direct threat against Ms. Naffe with Frey stating that he intended to investigate Ms. Naffe for possible criminal misconduct." Docket No. 53, at 11:18-21. Again, sanctions may very well be in play for Plaintiff's (and/or her counsel's) willingness to play fast-and-loose with the language that is actually at issue here. [Emphasis added]

Though Judge Wu did not ultimately award sanctions, I look forward to quoting those words on appeal or in a state court motion for sanctions if Naffe re-files there.

Closing Thoughts

It's been an honor to represent Patrick pro bono. It's been a privilege to work with and learn from Ron Coleman. I appreciate the opportunity.

Observing commentary on the case has been . . . interesting. I'd divide the coverage into three camps. There are people who are supportive of Patrick, but whose coverage really doesn't delve into the legal issues. There are the vapid and dishonest partisan hacks who attack Patrick for political reasons, and who don't address the legal issues at all. There's the greasy, demi-literate, demented Hutt who wrote an extended quasi-sexual fantasy about a mob murdering Patrick and me. Fun!

There are many people out there who support free speech, so long as it's free speech they agree with. That's not really supporting free speech. It's nice that people on the right supported Patrick's free speech — I wish they all supported vigorous political speech from the left as well. I would also have been happier if more people on the left supported Patrick — or, at least, treated the stark free speech issues presented in the case seriously. I didn't defend Patrick because I always, or usually, or even often agree with him. He's to the right of me politically, and a prosecutor (and therefore reliably wrong on criminal justice issues), and I often disagree with him. I defended him because the First Amendment that lets him speak freely lets me speak as well. I defended him because malicious, frivolous, and politically motivated lawsuits aimed at censorship make it a little more dangerous for each of us to speak. I defended him pro bono because frivolous lawsuits can effectively censor people even when they eventually fail, because the expenses of lawsuits can be ruinous.

If you are happy with this result, and if you are happy that lawyers will represent people pro bono in free speech cases, I ask this favor: next time you have the chance, stand up for the free speech of someone whose views you despise. Speak up and fight back when someone advocates censorship. Respond to the Popehat Signal, or to any of the opportunities out there to support free speech — even speech that angers you. Even if you don't like this result, or you don't like Patrick's politics, or mine, I respectfully challenge you to review the free speech issues in the case. Think about them carefully and ask yourself: could I be accused of defamation and intentional infliction of emotional distress for vigorously challenging someone with whom I disagree?

Thank you.

Appendix: Documents From This Phase Of The Case

Operative Complaint

Nadia Naffe's First Amended Complaint

Patrick's Motions

Anti-SLAPP Motion

Motion To Dismiss Under FRCP 12(b)(6)

Motion to Dismiss For Lack of Jurisdiction Under FRCP 12(b)(1)

Motion For Bond

Declarations and Exhibits

Supplemental Declarations and Exhibits

Request for Judicial Notice

Naffe's Opposition Briefs

Opposition to Motion to Dismiss Under Rule 12(b)(6)

Opposition to Anti-SLAPP Motion

Opposition to Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Opposition to Request for Bond

Declaration of Nadia Naffe in Support of Opposition Briefs

Patrick's Reply Briefs

Reply In Support of Motion to Dismiss Under Rule 12(b)(6)

Reply in Support of Anti-SLAPP Motion

Reply in Support of Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Reply In Support of Motion for Bond

Judge Wu's Ruling

Tentative Ruling

Minute Order Confirming Tentative Ruling

Today the Daily Journal published my column "Protect Your Client's Online Reputation Without Running Afoul of the 'Streisand Effect.'"

It's behind a paywall. But much of the advice I give is paraphrased from this post from last July.

It was the Daily Journal's idea to use, as a graphic on the story, an enormous picture of Barbara Streisand's house. Well played.

We invited Cathy Gellis to guest-post her observations of a Prenda hearing today. Hot on the heels from helping to secure an a hefty attorney fee award against the infamous Charles Carreon, Cathy Gellis went to court to check out the latest news from the Internet's other favorite lawyers. Cathy practices cyberlaw in the San Francisco Bay Area and maintains a blog at DigitalAgeDefense.org, exploring how criminal consequences have been attaching to technology use and development.

All of Popehat's Prenda coverage is collected here.

While most of the recent news involving Prenda Law has come from the case in front of Judge Wright in Los Angeles, it’s far from their only case. Apart from the Godfread/Cooper defamation cases and the Computer Fraud and Abuse Act cases the LA matter is just one of the hundreds of copyright cases the Prenda operation had deluged the courts with. But the LA case appears to be the case that has caused the entire Prenda Law house of cards to finally come crashing down. Like a high rise that has just been dynamited for demolition, the concussive force of its spectacular collapse is undermining the foundations of all its other cases as well.

Including this particular one in federal court in San Francisco.

The case so far

It began as a Prenda Law case usually begins: using questionable "forensics" to identify someone to target, first with threatening letters and then a lawsuit if they didn’t pay up. In this case, when Joe Navasca’s father didn’t capitulate, Prenda Law targeted the son instead. (Note: I’m including his name because it is now in the public record. And also to commend Mr. Navasca for standing up to these bullies.) Unfortunately for Prenda Law, the wheels of justice grind slowly, and some of its previous cases were starting to catch up with it just as this one began to lurch forward.

The default rule in American litigation is that everyone pays for their own lawyers. But some laws, the Copyright Act being one of them, have provisions so that the loser pays for both sides' lawyers. Fully denying all of Prenda Law’s allegations of infringement, and now aware of the allegations of malfeasance directed at the Prenda Law enterprise, Mr. Navasca reasonably expected Prenda Law to eventually lose the case it had brought against him and need to reimburse him for his attorney fees. But just because a judge may grant an award of attorney fees doesn't mean the money will ever be recovered; enforcing a judgment often presents its own expensive challenges, meaning a wronged defendant can still be saddled with the costs of his own defense. However the California Code of Civil Procedure has a provision, § 1030, to help mitigate that financial risk by allowing defendants in similar positions as Mr. Navasca to require plaintiffs to make an "undertaking;" that is, to post a bond that would guarantee, when the defendant inevitably wins his fees, that he would actually get the money. Citing that provision Mr. Navasca moved the court to require Prenda Law to make this undertaking. Naturally Prenda Law opposed this requirement in a filing I will leave to others to snark about that in order to continue the story.

Meanwhile, as the question of the undertaking was pending, the discovery stage of the case had begun. At first Prenda Law tried to hurry up and expedite the discovery over a very specious evidence spoliation concern, an attempt which got nowhere. (But note this topic for later.)

The day after rejecting the attempt to expedite discovery the court granted Mr. Navasca’s motion requiring Prenda Law to provide the undertaking, but agreed to stay the ruling (meaning, postpone whether it should be put into effect) in order to give Prenda Law a chance to move for the court to reconsider it, which it does not appear to have ever done. At this point Prenda Law decided that discovery was actually all happening way too fast and so moved to stay it (basically, to put it on pause) while the undertaking issue continued to pend. Mr. Navasca’s response to this motion basically boiled down to, "While we don’t necessarily have a problem with staying discovery generally, we do find it suspicious that you want to stay it right before we get to do our 30(b)(6) deposition of AF Holdings." The court denied Prenda Law’s motion to stay the discovery and the 30(b)(6) deposition of Paul Hansemeier went forward.

And what a deposition that turned out to be. (At today's hearing Judge Chen asked, "There was a 30(b)(6) depo. What happened?" but it seems clear he already knows.)

The deposition took place on February 19. On February 20, Paul Duffy moved to substitute for Brett Gibbs in the Navasca case, which the court granted on the 26th. Also on the 26th Prenda Law moved to "voluntarily dismiss" the case, whining about the judge's ruling on the undertaking, clearly hoping that would be the end of it and it could scurry off into the shadows.

Not so fast, responded Navasca’s attorneys, Nick Ranallo and Morgan Pietz, in a brief whose table of contents alone is eviscerating. You can’t just dump an expensive, unmeritorious lawsuit on an innocent defendant, certainly not by committing fraud on the court, and then simply walk away from it. You are at least going to need to pay us the fees we had to expend defending against it.

Paul Duffy's rocks and hard places

Paul Duffy has a problem. He's counsel of record for AF Holdings, to the extent that AF Holdings even is a client separate and distinct from Prenda Law. But in between the time he filed the motion for voluntary dismissal and now, the April 2 hearing in Los Angeles happened where he (among other Prenda Law people) plead the Fifth Amendment in refusing to answer questions about AF Holdings. This act put him in a bind: if he opened up his mouth in San Francisco to talk about AF Holdings it could inculpate him in its affairs. You can't assert the Fifth Amendment in some contexts and waive it in others, that's not the way it works. Anything he says about AF Holdings in some proceedings can and will be used against him in others.

On the other hand, as counsel to a purportedly separate and distinct client, he can't just blow off the hearing, even if that might be the best option for saving his own skin. AF Holdings, whoever it is, is staring down the barrel of a judgment on the order of tens of thousands of dollars against it. If it were truly a separate client it should be able to count on him to try to prevent such a judgment. Note: this doesn't mean the client could expect him to prevail, but it could expect him to at least give it the ol' college try. That meant that he couldn't just not show up (which apparently was what he did — or, er, didn't do — at a hearing yesterday in Illinois). He couldn't just withdraw as counsel, either, because that generally requires the court's permission once a lawsuit is underway in order to make sure a client isn't being left high and dry (see, for example, the earlier motion to substitute Duffy for Gibbs, which they needed the court to approve). Nor could he choose to just not argue, or purposefully argue badly, without abrogating his ethical duties to the client. But it was unclear what he could argue that wouldn't further implicate him in the misdealings of the Prenda Law enterprise.

The ol' college try

The above sets the stage for today's hearing, which was the third matter on Judge Chen's afternoon calendar. I've never appeared before Judge Chen, but I've now observed quite a few of his hearings (not just today, but also when I waited to serve Charles Carreon…). His demeanor is not terrifying; for the well-behaved attorneys appearing before him he seems to play a role almost like a mediator, efficiently absorbing facts, managing case logistics, and isolating areas of contention. For the less well-behaved his countenance appears to remain much the same, as he allows both sides ample time and opportunity to present all facts and arguments for his consideration. But should his calm patience ever delude counsel into taking him for a fool, a stinging pointed question, albeit very calmly made, will serve as notification of their error.

Duffy did, in fact, appear in person, despite his absence yesterday. Unfortunately he mumbled so much that even though I was in the front row of the gallery I didn't catch everything he said. The court reporter was much closer and presumably caught all of his equivocation, but there did seem to be an awful lot he didn't know. Which was particularly notable when confronted with questions about AF Holdings. "I have no personal knowledge," Duffy said in response to one such question, prompting Judge Chen to ask, "Well, what do you know?" and Mr. Ranallo to observe that, "There's been a pattern of no one knowing anything when the time comes" for them to give answers.

Duffy did, however, continue the pretense of being separate, disinterested counsel for this mysterious AF Holdings entity, despite all evidence of it, and him, being rolled up in the Prenda Law enterprise. And for what it's worth, his personal behavior was never really at issue today. The issue, as Judge Chen announced at the top of the proceeding, was whether the dismissal should be granted, and if so, whether it should be with prejudice (meaning AF Holdings would have essentially surrendered on the merits and could never refile this lawsuit ever again), and whether any attorney fees should be awarded to compensate the defendant for having been put through it.

(Actually, even before that Judge Chen began the proceeding with the more ominous, "I asked you to come here today in light of all the things that have happened.")

Why are you asking for this case to be dismissed, he first asked Duffy. There's two reasons, Duffy responded, one being that the $50,000 undertaking was too expensive. He argued the same in his reply to the opposition to dismiss the Navasca case, which basically whined that Prenda Law should not have to be burdened with needing to round up $50,000 in order to pursue a copyright case against a single infringer. Never mind that the court had previously been unimpressed by Prenda Law’s earlier pleas of poverty, the reality is that litigation is expensive. It’s expensive even for truly-wronged plaintiffs, who often can’t afford to sue to vindicate legitimate injuries, and it’s certainly expensive for innocent defendants. In the "Joys of Yiddish" Leo Rosten illustrated "chutzpah" as someone who has killed his parents asking the court for mercy because he’s an orphan. Were Mr. Rosten alive today I think he might update his book with Prenda Law's brief.

The other reason, he said, was that there was a problem of evidence spoliation, which I referred to briefly above. The defendant had been running a piece of software called CCleaner on his computer, and Duffy complained that it destroyed the evidence it needed to be able to prosecute the infringement claim.

At first blush, these complaints may sound quite reasonable (although, as Mr. Ranallo noted, neither had been raised in Prenda Law's initial motion to dismiss). But they are worth further scrutiny. For one thing, CCleaner had been running on the defendant's machine for more than a year before the lawsuit had been filed, a fact that alone deflects claims of spoliation. Secondly, its operation has no effect on the sorts of evidence Prenda Law might want to collect. Although the question of spoliation hadn't been fully adjudicated earlier because Prenda Law's complaints had been couched in a premature motion to compel, the magistrate ruling on the motion had looked into the issue and indicated the concerns appeared unfounded (note the exhibits to the filings linked above). In any case, as Judge Chen honed in on later in the hearing, usually a plaintiff is happy for there to be spoliation problems. "Normally if you argue spoliation, you win the case!" It seemed very strange, he observed, to give up because you are claiming spoliation (and, he asked later, if it really were such a problem, why did you wait to withdraw the case and not do so as soon as you learned of it?). In response Duffy fell back on the, "well, at $50,000 it was too expensive to continue the case" argument. But bear in mind, it's just a $50,000 undertaking, not a $50,000 forfeit. You get it back if you win.

But Prenda Law may have realized it wasn't going to win, and Judge Chen pointedly asked about that. "Why is this attempt to dismiss not simply an attempt to avoid adverse rulings?"

And that was the crux of the hearing as it in some ways went around and around in circles, with Duffy either arguing "it was too expensive to continue!" or "spoliation!" whenever he was losing ground on one or the other, trying to make it seem perfectly innocent to be dropping the case now and avoid all consequences for having pursued it. But Judge Chen did also seem curious about the ownership issues. Who is Salt Marsh, he asked at one point. Mr. Ranallo responded with a reference to the April 2 hearing when Mr. Duffy and others took the Fifth. "That tells us a lot about why this case is ending now." (To which Duffy protested, "This is a civil matter, that was a criminal one. You can't make inferences.") [Ken's note: Ars Technica heard some comments about Salt Marsh as well.]

Judge Chen's questions then turned to fees. Citing a case whose name I didn't fully catch but I think is this, he asked Mr. Ranallo about what portion of his claimed fees applied solely to defending this case and what could be leveraged in other cases. "There will be no subsequent suits," he answered. "Standing is blown." ("That's pure speculation as to the intent of the plaintiff," countered Duffy.)

Mr. Ranallo continued. Nearly all AF Holdings case have been dismissed in the same two weeks, even cases that had no undertaking requirement, and even a case where it had already won a default judgment. (Totally innocent, Duffy explained. It's simply because Gibbs had decided to quit.) The few cases that remain active are the Magsumbol case, where a voluntary dismissal had been denied, and the Trinh case, also in San Francisco, where a $40,000 undertaking had been required, but because Prenda Law hadn't posted it, the case got dismissed with prejudice, thereby making it the losing party and vulnerable to a fee order under the Copyright Act. The nightmare, and potentially very expensive, situation for Prenda Law is that either outcome happens here.

Ultimately, Judge Chen took the matter under submission — meaning that he could rule at any time.

Final thoughts

In one sense it was somewhat disappointing that there was no Perry Mason moment, but as Ken has noted those moments rarely happen. The devil is in the little details and their implications as they are slowly revealed. The wheels of justice grind slowly, it's true, but as we continue to see, they do grind forward.

As I write this it seems pretty clear that CNN shat the bed by reporting that the FBI arrested a suspect in the Boston Marathon bombing and that there will be an appearance in federal court today.

Who knows when — or even if — an arrest and federal court appearance will happen.

But the media has been spewing inaccuracies about how it will happen, if it does. Here are a few things to keep in mind if the feds arrest someone and charge a federal crime. Federal criminal lawyers will find this oversimplified.

1. Federal prosecutions start in one of two ways: by a criminal complaint or an indictment. You get a complaint by presenting a federal magistrate judge with an affidavit explaining the facts establishing probable cause that the defendant committed the specified crime. You get an indictment by presenting a case to a grand jury. If an arrest happens soon, it will be by complaint. If it takes months, it could possibly be by indictment.

2. The feds will probably get an arrest warrant before they arrest a suspect. They will probably do that by filing an affidavit in support of a criminal complaint, as set forth above in (1). The feds could arrest someone without a warrant, but they won't unless emergency circumstances (like the suspect fleeing) arise. If they do arrest the suspect without a warrant, they'll immediately draft an affidavit in support of a criminal complaint and present it to a magistrate judge, as the defendant will be entitled to a prompt determination of probable cause after arrest. They will probably do that before the defendant's first appearance. So: if they arrest without a warrant, there will be a delay while they draft the affidavit.

3. The feds will probably try to interview the defendant. If the defendant is dumb or dumb-political and talks to them, the interview process will consume some time.

4. The defendant will be entitled to talk with an attorney before the first appearance. That will likely be a Deputy Federal Public Defender or someone from the local federal indigent defense panel. The first attorney meeting won't be extensive but will consume some time.

5. Pretrial Services — an arm of the court — will want to meet with the defendant. Pretrial Services' purpose is to gather information the court can use in making a bail determination. Here that's something of a farce; there's no way someone charged with this bombing will get bail. Nevertheless, Pretrial will go through the motions. The defendants' lawyers will tell Pretrial the defendant doesn't want to talk to them.

6. The arresting agent will have to get the office of the clerk to put the defendant on calendar before the magistrate judge on duty that day. How difficult that is depends on how busy the calendar is, which depends on who else has been arrested. Practically speaking, in a busy federal court like Boston, if the feds don't check in with the clerk by noon, it's very hard to get someone on calendar before the judge that day. Here the clerk's inclination to treat the case specially will conflict with all the complicating factors, causing a wash. Our defendant may not appear on the same day he's arrested unless he's arrested quite early. (Feds and locals everywhere love arresting people late morning Friday, which assures a weekend in custody with no bail determination. Some agencies love bringing in hordes of defendants as late as possible on Friday just, as far as I was ever able to determine, for the lulz. I'm looking at you, DEA.)

7. At his first appearance the magistrate judge will arraign the defendant. That means the judge will inform the defendant of the charges against him and his relevant constitutional rights. The judge will set a next court date. The government will ask the court to detain the defendant without bail, which the court will do. (Under the Bail Reform Act a federal defendant is entitled to bail unless no bail conditions will assure the safety of the community and the appearance of the defendant — here the judge will likely find both a flight risk and a danger to the community, no matter who the defendant is.) The defense may simply submit or ask for a delay of the bail hearing.

8. If the defendant was arrested based on a criminal complaint, and he's held without bail, he's entitled to a preliminary hearing within 14 days unless he's indicted. The feds will avoid the need for a preliminary hearing by indicting him first.

The bottom line is this: if there is an arrest, it's possible (or probable) the defendant won't make his first appearance the day of the arrest.

It's time for the Popehat Signal: a call for lawyers and citizens to assist a litigant in standing up against unprincipled censorship.

My friend and colleague Paul Alan Levy of Public Citizen — fresh off a free speech victory against the infamous Charles Carreon — has asked for assistance in Medina County, Ohio. This is a classic case where pro bono assistance can help thwart an unprincipled and censorious plaintiff's manipulation of the flaws in our judicial system.

The plaintiff in question is Med Express, a company that sells refurbished medical equipment on Ebay. They have sued Ebay and a South Carolina resident named Amy Nicholls. I will let Med Express' complaint speak for itself:

6. On February 12, lOB, Nicholls paid for the item and shipping via Pay Pal. Promptly after receiving Nicholls' payment, Med Express took the equipment to the Valley City post office. where it was weighed and shipped to Nicholls. Med Express paid the full amount of the shipping cost, but for some reason unknown to Med Express, the equipment was received by Nichols with $1.44 postage due.

7. When notified of the problem, Med Express immediately offered to reimburse Nicholls for the postage due amount. Despite this offer, and before giving Med Express a chance to reimburse her, Nicholls on February 26, 2013, apparently as a result of the $1.44 postage due, posted negative feedback and comments for the transaction on Ebay's website and gave Med Express low ratings in the Detailed Seller Ratings section of Ebay's Feedback Forum, resulting in an unfavorable feedback profile for Med Express. In so doing, Nicholls falsely and deliberately slandered the good name and reputation of Med Express.

You read that right — Med Express admits that Nicholls received a package from them postage due, and is suing her for complaining about it, suggesting that she should have just taken reimbursement and shut up. Med Express is seeking damages and an injunction forcing the removal of Nicholls' feedback. That feedback was, by Med Express' own description, true:

Order arrived with postage due with no communication from seller beforehand.

When Mr. Levy pointed out to James Amodio, attorney for Med Express, that true statements are protected by the First Amendment, Mr. Amodio responded with an open, contemptuous, and contemptible threat to abuse the legal system:

I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers.

This is the ugly truth of the legal system: litigants and lawyers can manipulate it to impose huge expense on defendants no matter what the merits of their complaint. Censors can abuse the system to make true speech so expensive and risky that citizens will be silenced. Regrettably, Ohio does not have an anti-SLAPP statute, so Med Express and James Amodio can behave in this matter with relative impunity. If Ms. Nicholls has to incur ruinous legal expenses to vindicate her rights, the bad guys win, whatever the ultimate outcome of the case.

Unless, that is, you will help Amy Nicholls stand up — not for $1.44, but for the freedom to speak the truth without being abused by a broken legal system.

If you are an attorney practicing in Medina County, Ohio, please consider offering pro bono assistance. Mr. Levy will be coordinating assistance, and I can tell you from personal experience that it is a privilege to work with him. Help give Med Express and James Amodio the legal curb-stomping they so richly deserve. Justice, karma, and the esteem of free speech supporters everywhere will be your reward.

If you aren't an attorney, you can help, too. Med Express should not be permitted to act in this manner without consequence. The natural and probable consequence is widespread publication of their conduct. Help by publicizing the case on Facebook, Twitter, on your blog, on forums, and on every other venue available to you. Ask yourself — would you want to do business with a company that abuses the legal system to extract revenge against customers who leave truthful negative feedback?

Stand up for free speech.

Thanks.

Edited to add: "Med Express" is a mundane name; make sure you refer to and link to the correct one — this one, med_express_sales.

Edited again to add: Thanks to Prof. Reynolds of Instapundit for the link to this. It's possible Med Express didn't think this plan all the way through.

UPDATE WITH AWESOMENESS: I offer my profound respect and appreciation to Jeffrey M. Nye and Thomas G. Haren, who have answered the call. If their names sound familiar, it may be because they stepped up and represented a blogger pro bono just a few months ago. I understand that they will be stepping in to assist Ms. Nicholls pro bono. Moreover, I understand that multiple attorneys are now investigating whether Med Express has filed other defamation suits to silence negative feedback. I'll report when I hear more.

I've said this before: free speech depends on people like Jeff and Tom. Anti-SLAPP statutes are slowly proliferating across the country and more people are becoming educated about First Amendment rights. Ultimately, though, our broken legal system allows bullies to extort silence through the credible threat of stressful, expensive, uncertain litigation even when they have no valid claim. It takes lawyers like Jeff and Tom — and like a number of other good people who wrote me in response to the Popehat Signal — to push back against that problem. I'm just sitting on my ass blogging; Jeff and Tom are putting their skills and many hours of their valuable time on the line during a bad economy. I salute them, and if I ever have to recommend lawyers in Ohio, they will be at the top of my list.

Late last week I learned of the case of Lesley Kemp. Ms. Kemp transcribes recordings. Ms. Kemp accepted a job from Qatar-based Resolution Productions. Ms. Kemp claims that she experienced delays in payment for her services and that Resolution's Managing Director, Mr. Kirby Kearns, made excuses. She wrote posts on Twitter about this experience, and later reported on Twitter when she was paid. She was quite shocked — understandably — when Kirby Kearns, through his solicitor Barjinder Sahota of Sahota Solicitors, sued her for libel in England. England's Libel Reform Campaign is supporting her, a donation page has been set up to assist her with costs, and top-notch attorneys are defending pro bono.

This sort of thing is relevant to my interests, and I decided to write to Resolution Productions seeking comment.

Dear Resolution Productions,

I am an attorney in Los Angeles, California and a writer on legal issues including free speech, legal threats, and abuse of the legal system. In that capacity, at my blog www.popehat.com, I often write about lawsuits calculated to chill speech, about threats directed at internet speech, and about the Streisand Effect and how it impacts legal threats.

I am investigating your lawsuit against Lesley Kemp, described here: http://www.libelreform.org/news/540-transcriber-libel-case, in preparation for writing about it and encouraging others to write about it and donate to Ms. Kemp's defense.

Would anyone with your business be willing to comment on the case, its merits, or Resolution Production's position for this story?

Thanks very much,

Ken White
www.popehat.com

Early this morning I received the following response. All emphasis is in the original.

Dear Mr White,

PRIVATE & CONFIDENTIAL.

NOT FOR PUBLICATION:

ACTIVE CASE: HIGH COURT OF JUSTICE (UK), QUEEN'S BENCH DIVISION.
Claim number HQ12D05081 Mr Kirby Kearns and Mrs Lesley Kemp

I act for Mr Kirby Kearns, the Claimant in the above libel action and am responding to the email you sent to a company of which he is a Director – the company is not a party to the action.

As you will no doubt appreciate this case is the subject of ongoing and active litigation which will be determined judicially in a fair and proper manner in a court of law in England. We refuse to take part in any 'kangaroo court style media circus' that has being created by various groups.

You are expressly refused consent to publish any material that defames our client's good name. Our client reserves all his legal rights and remedies including commencing legal proceedings against yourselves as and when appropriate, should you take part in, or otherwise encourage, the continuing online vilification of our client. You are asked to resist and desist.

As an Attorney yourself you will know the implications of the above.

Once a proper court has adjudicated and reached a reasoned judgement based on the facts and the law, then, we will be more than happy to discuss the case with you – but until then our client declines all consents and issues due warning to you, via us, to resist and desist publication of any material, or the repetition of the same, that defames our client directly or by inference.

Yours sincerely,

Mr Sahota
Solicitor-Advocate (Higher Courts, Civil)

SAHOTA SOLICITORS
[address omitted by Ken]
London WC2R 1AT
[phone numbers omitted by Ken]
www.libel-law.co.uk

Mr Sahota is a member of the Law Society of England and Wales (No.146085) and our practice is authorised and regulated by the Solicitors Regulation Authority ('Sahota Solicitors' No. 74569) – we strive to be effective and professional, if you have any comments or questions please contact Mr Sahota in the first instance.

Unless otherwise requested please respond by email.
THIS EMAIL IS CONFIDENTIAL, IF YOU HAVE RECEIVED IT IN ERROR PLEASE NOTIFY US AND DELETE FROM YOUR SYSTEM. THANKYOU.

I decided to respond.

Dear Mr. Sahota,

What a pleasure to be threatened by you, and to meet you, in that order.

Mr. Sahota, I help clients respond to legal threats for a living, and write about defamation threats as a hobby. I am therefore quite familiar with them, almost to the point of tedium. Your pompous yet feckless bluster distinguishes you. Well done!

It is my experience, Mr. Sahota, that the more extravagant the threats, the less merit cringes behind them, and the more mewling and milky the moral character that spurs their utterance. Your tirade arouses my suspicions further and redoubles my determination to investigate and write about your client's case against Ms. Kemp. Even the modest exercise of diligence, good judgment, or professional competence on your part would have suggested this would be the result of your threats. I wonder whether, before you sent your letter, you advised your client of its natural and probable effect.

As a preliminary matter I reject your pretenses to the confidentiality of your communication. You have threatened me with suit if I write about a legal proceeding of public interest. You have no basis to demand that I keep such a threat confidential, and I will not do so. Rather, I will publish it, and this response, to help readers assess your client's case.

Moreover, I reject your threat. I write about defamation cases, legal threats, and abuses of legal process, and I will continue to do so, whether you threaten me or not. You reside in a great nation with a contemptible libel law — one that has made you notorious haven for libel tourists, a breed of privileged thugs who believe their money should protect them from criticism. Reform movements give me hope that situation will change. But for now, Mr. Sahota, I do not live in a haunt for libel tourists. Rather, I live in a country that has taken specific steps to thwart them. As I have written before (http://www.popehat.com/2010/08/27/speech-act-a-bulwark-against-buffoonish-brits/), the SPEECH Act is a shield that prevents enforcement of your unprincipled libel judgments here in America. If you seek to silence me through abusive suit in England, no judgment you secure will be enforceable here. If you seek to harass me in the United States, our vigorous protections for free speech will thwart you. One of my favorite hobbies is seeking pro bono assistance for frivolously threatened bloggers here (http://www.popehat.com/tag/popehat-signal/). I suspect that, should you attempt to silence me through abuse of the United States legal system, I will not have the least difficulty in securing effective representation in any jurisdiction you might select. I have, myself, had some success with anti-SLAPP motions; you might want to research them.

You believe that you and your client are entitled to select the sole venue in which Mr. Kirby Kearns' claims are evaluated. You, Mr. Sahota, are mistaken. Of course you deride public examination of your suit as a "kangaroo court style media circus." You have chosen a venue that favors the strong against the weak, the bully against the victim, the rich against the poor, and you seek to maintain that sole advantage. You will not do so, sir. I commit to researching your client's case, and the circumstances that led to it, and publishing every true fact and relevant document about it. What you call a "kangaroo court" others regard as the right of free people to educate themselves, evaluate behavior, and speak their minds. Your client is not entitled to have his reputation protected from the consequences of his own behavior.

I strive to discover true facts and to write only accurate statements about the case. I will always be willing to hear and evaluate claims and evidence suggesting what those true facts are. If you ever believe that I have reported anything incorrectly, I request that you let me know immediately, so that I can assess your claim and if appropriate make a correction.

But you do not intimidate me, sir. In threatening me you have made an error in judgment.

Very truly yours,

Ken White
www.popehat.com

I will let you know if I receive a response. I will also research the case and write about it. In the meantime, follow the links at the start of the post to educate yourself about the case, and consider a modest donation to defray Ms. Kemp's court costs.

I say it often: vagueness in legal threats is the hallmark of meritless thuggery.

Today, let's look at a case study.

Continue Reading »

Dear Court Reporting Service My Firm Uses,

Thank you for the competent and reliable services you have provided to us during various depositions over the last few years. Thank you also for the cookies, goodies, free lunches, and other marketing perks you have sent over the years, which help reduce our competition by contributing to Type II diabetes amongst attorneys.

Now . . . as to your spam email of today.

Your email was designed to convey the notion that you are versatile and responsive and flexible and ready to serve. You chose to convey that message by emailing me a . . . a skit. Or maybe you'd call it a short story. It's too long to be a vignette.

The skit began, without preamble, like this:

“You have to stop whining. You’re beautiful and I love you,” he said, “but I have to go.”

The speaker, we quickly learn, is one of your court reporters, talking to his dog. No. Really. And that's the part of the email that shows up in the preview window.

In the course of the rather lengthy skit, your reporter demonstrates responsiveness to clients when a deposition is moved from Los Angeles to the nearby island of Catalina. That's swell. If I ever abruptly move a deposition the day it is scheduled to a nearby island in violation of every rule of court and professional conduct, I'm glad to know your outfit can roll with the punches.

But I'm here to tell you: emailing me this skit, in an email titled only "Avalon," with a sales pitch at the end, did not come off as charming or imaginative or bold. Here's a sample of reactions from me, my associates, and my paralegals: "Whiskey Tango Foxtrot!" "Seriously?" "Eeeeew." "Ridiculous."

Marketeers need to have some grasp of their audience. Your audience is made up of professionals wanting reliable no-drama service. You advertised with dramatic spam. Everyone here found it creepifying. I know people say "any publicity is good publicity" and "all you need is for people to think of you." But next time I need a court reporter and someone suggests you, I am going to think "wait — are those the people that sent the weird court reporter skit with the needy dog and the helicopter? Who else can we use?"

Seriously. Think this stuff over.

Fondly,

Ken

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

After the April 2, 2013 hearing at which Prenda Law principals invoked their Fifth Amendment right to remain silent in response to Judge Wright's Order to Show Cause, Prenda's principals have been filing briefs setting forth their position. I previously described a quite good brief from attorneys for Prenda Law, Paul Duffy, and Angela Van Den Hemel, and a brief by attorneys for Paul Hansmeier.

This morning John Steele's brief appeared on PACER. (It may have been filed yesterday.) The brief is here. It is, by a considerable margin, the most truculent and blunt of the three filings. Steele repeats the same themes as his colleagues, and cites many of the same authorities, but does so more forcefully.

Jurisdiction and Limits On Judge Wright's Power Most of Steele's brief is concerned with limits on Judge Wright's sanction and contempt power and on his jurisdiction over Steele, some of which I discussed in my post on the tools available to Judge Wright. Steele's argument is that he wasn't counsel of record here, didn't engage in any conduct in this district, didn't sign or file anything in this district, that the evidence is insufficient to prove he directed any conduct in this district, and that Judge Wright lacks authority to sanction him for conduct in other districts. Steele also argues forcefully that Judge Wright has not accorded him sufficient due process to use sanctions or contempt power against him. The brief's review of the authorities explaining the limits of Judge Wright's various sanctions and contempt powers is thorough and strongly presented.

Like Hansmeier, in arguing that Judge Wright lacks power over him, Steele points the finger at Brett Gibbs, and argues that Gibb's testimony is inconsistent and inadequate to establish that Steele supervised or directed him:

Similarly, Prenda attorney Brett L. Gibbs’ testimony fails to support a finding of jurisdiction over Steele, as his testimony lacks specificity regarding Steele’s involvement in the subject cases or any California cases, and is otherwise inconsistent or contradicted by others. For example, although Gibbs claimed he was supervised by Steele and Hansmeier at Prenda Law, when pressed for specifics about the degree of supervision he received, Gibbs only offered that Steele and Hansmeier gave him authority to file certain cases here. See Dkt 108-5, at 77:8-24. Gibbs’ further testimony has revealed he had significant autonomy in handling the cases. See Dkt 108-5, at 77:25-78:4 (claiming Steele and Hansmeier “gave me certain parameters [pursuant to] which I could settle the case myself.”); see also Dkt 108-5, at 79:1-5 (regarding the decision to dismiss cases in this Court Gibbs noted: “As counsel of record here, I just kind of broke down like a cost benefit analysis of those cases. And they said, basically, go ahead and dismiss them.”); see also Dkt 58, at ¶5 (claiming Steele and Hansmeier provided him with “guidelines”).

Like his colleagues, Steele also argues that Judge Wright cannot draw adverse inferences from his invocation of the Fifth Amendment because Judge Wright initiated proceedings that were akin to contempt.

The Substance: Steele spends much less time on the substance of Judge Wright's inquiry. What time he spends is defiant and somewhat cavalier. Consider how he frames his response to the accusation that Prenda Law misappropriated the identity of Alan Cooper:

As both Gibbs and Prenda/Duffy/ Van Den Hemel noted in their Responses To The OSC, the Court is mistaken about the law in this regard; the signature of the assignee is irrelevant to the validity of the assignment, so long as the assignor signs. See Dkt 49, at 25:9-26:19; Dkt 108, at 11:24-12:9.; see also 17 U.S.C. 204(a). Lastly, the Court stated: “the Court will not idle while Plaintiff defrauds this institution.” Dkt 48, at 9:10-11. However, even if the Court were to discount the evidence submitted impugning Cooper’s credibility and blame Steele for this “fraud,” it hardly rises to the level of fraud upon the court recognized by the Ninth Circuit, i.e., “a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” In re Intermagnetics Am., Inc., 926 F.2d 912, 916 (9th Cir. 1991)

The argument that a forged signature by Cooper would be immaterial is familiar; the additional argument that it is not any big deal is new, and tactically questionable.

Arguing in court often means finding an effective way to tell a judge he or she is wrong. Usually this involves a certain level of finesse. Sometimes it doesn't:

Regarding any other alleged fraud the Court may consider, as Section III above makes clear, except in rare circumstances not present here, this Court is not empowered to sanction Steele or anyone else based on conduct occurring entirely outside of the subject cases and the Central District. Based on its prior statements, the Court may have erroneously felt otherwise before. Dkt 108-5, at 29:14-22 (over Gibbs’ counsel’s objection that the Court’s inquiry about non-Central District cases was “beyond the scope of the OSC,” and “not what this OSC is about,” the Court responded: “Well, it has become
about it. It has become about fraudulent filings in federal court” generally). [emphasis added]

Or consider this:

Although the Court has not specified the sanctionable misrepresentations it is referring to, the Court has apparently concluded such misrepresentations have occurred. See Dkt 86, at 1:28- 2:2 (“it appears that these persons, and their related entities, may have defrauded the Court through their acts and representations in these cases.”); Dkt 108-5, at 58:21-25 (wherein the Court implies officers of the court have knowingly made misrepresentations to the court). Disturbingly, the Court’s apparent conclusions about the relationships between the persons and entities named in the March 14, 2013 OSC wholly ignores evidence to the contrary Compare, e.g., Dkt. 69-1, pp. 21:18-2, 38:22-39:15, 40:8-12 (regarding who owns AF Holdings) with Dkt 108-5, at 114:5-8 (I do have the picture, and I know who the client is. We have talked about the client, and the client has been running everything. Yeah, I know who the client is”); see also Dkt 108-5at 19:15-18 (suggesting Prenda law is “controlled by Mr. Steele.”)[emphasis added]

Steele's other substantive arguments are now familiar: he asserts that the evidence is inadequate to show that he was involved in any part of the conduct of the litigation before Judge Wright and therefore cannot be subject to sanctions, and that the notice of the March 11, 2013 hearing was inadequate and that therefore he cannot be sanctioned for failure to appear. Steele, as his circumstances require, is mum about the actual ownership of the Prenda Law clients, or whether he has any financial interest in them.

The Battle and the War: John Steele's brief is not calculated to persuade Judge Wright. It's not even calculated to avoid antagonizing him. Rather, it's calculated to make a record for appeal. In fact, I suspect the brief is calculated at least in part to goad Judge Wright into issuing an overbroad order that is vulnerable when appealed to the Ninth Circuit.

Steele is playing a dangerous game, and one that is focused on his own short-term survival rather than any possible future viability of Prenda Law or its potential spinoffs. In an effort to attack the adequacy of the evidence in this case, he's attacked Brett Gibbs and left him holding the bag. That might be good battle-tactics, but it's problematical strategically — in the long term, I wonder what emails or other documents Gibbs might have that he can provide to courts or other authorities. Gibbs is well-represented, shouldn't take the fall for Prenda Law, and won't. Moreover, Steele's blunt and defiant response won't play well in front of any other court or tribunal across the country when Prenda Law defendants begin to seek sanctions or fees or investigations in those cases.

The wheels grind slowly. But they grind, my friends. They grind.

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

Last night I talked about a new filing by Prenda Law, Paul Duffy, and Angela Van Den Hemel in response to Judge Wright's OSC.

Today, Prenda Law principal Paul Hansmeier has filed a brief. The brief is here, a supporting declaration from his attorney is here, Exhibit A is here, and Exhibit B is here.

Hansmeier's brief echoes the structure, and many of the arguments, of the longer and more detailed brief that Heather Rosing filed yesterday. In some cases it incorporates that brief by reference. The notable new points are these:

The Fifth Amendment Issue: Hansmeier expands on the argument that Judge Wright's OSC proceedings were akin to criminal proceedings, and that therefore Judge Wright may not draw negative inferences from Paul Hansmeier's invocation of his Fifth Amendment rights. Hansmeier adds some additional authorities to support that point.

Hey Brett Gibbs, Something's Wrong With the Underside of That Bus. Can You Go Check It Out For Me? Hansmeier's primary argument against sanctions is that he did not participate in this litigation or supervise conduct by Brett Gibbs, and that Gibbs' testimony to the contrary should not be accepted. Hansmeier says that Gibbs never claimed to be supervised by others "until threatened with sanctions," and that in a declaration filed in a matter in Florida (attached as Exhibit B) Gibbs described his job without mentioning any such supervision. Hansmeier asserts that he was not involved in the investigation or litigation of the matters before Judge Wright and therefore not responsible for what Brett Gibbs did. He attacks, for instance, Gibbs' testimony that Gibbs passed along Judge Wright's order staying discovery to Hansmeier:

Outside of Gibbs’ testimony, there is no evidence that Gibbs instructed Hansmeier to instruct Respondent Van Den Hemel to instruct Verizon to not comply with the subpoenas issued months before the court’s order to cease discovery efforts. Such an instruction would be incompatible with Gibbs’ earlier characterization of Hansmeier as a supervising attorney; supervisory relationships are typically a one way
street.

So: Hansmeier didn't supervise Gibbs, which you know because Gibbs didn't mention it before, and Gibbs didn't pass along Judge Wright's order to Hansmeier, because you wouldn't do that to a supervisor. Gotcha.

Alan Cooper Contains Multitudes: What does Paul Hansmeier have to say about Alan Cooper's claim that his identity was stolen? Hansmeier says there's no evidence he is involved in any such — well, I'll let him explain:

Further, there is no evidence that Hansmeier obtained or represented that the signatures on the assignments over the name Alan Cooper were those of John Steele’s former caretaker, who bears that same name and who provided testimony to the court.

If you're paying attention, you'll see that Paul Hansmeier just coyly evaded the question of whether the "Alan Cooper" of AF Holdings is, or is not, the Alan Cooper who testified. He merely points out that Alan Cooper testified that he didn't talk to Hansmeier, and that there's no other evidence that Hansmeier secured the Alan Cooper signatures.

Interest? What Interest? Paul Hansmeier argues that there is no evidence that he concealed any financial interests in the Prenda Law plaintiffs, and repeats the now-familiar argument that any such concealment would be immaterial anyway. He also offers this:

But, the only evidence given regarding the financial interests to AF Holdings is that it is a limited liability company formed by Aisha Sargeant in May 2011 and is wholly owned by a trust with no defined beneficiaries. (ECF 69-1, pp. 21:18-2, 38:22-39:15, 40:8-12.) There has been no evidence that Hansmeier has an ownership interest in either AF Holdings or Ingenuity 13.2

Note that Hansmeier is referring to his own incredible deposition which Judge Wright aptly characterized as showing "so much obstruction" that "it's obvious that someone has an awful lot to hide." Paul Hansmeier had been presented at that deposition by AF Holdings as that entity's most qualified witness about AF Holdings' affairs. Hansmeier is therefore complaining that the record of AF Holdings' ownership is inadequate because it is based only on Hansmeier's own testimony in his role as the best witness for AF Holdings. This is, perhaps, not the most viscerally appealing argument anybody ever made.

Hansmeier's brief is decent, wisely relying on points deftly made by Rosing. But that farcical deposition Hansmeier gave will remain the albatross around his neck. It was a damned foolish way to act, emblematic of a hubristic crew of merely modest ability who believed that they could do what they wanted with impunity. That did not prove to be the case.

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

Two Prenda posts in a day may seem gratuitous. But I go where PACER leads me.

Late today Heather Rosing — currently counsel for the entity Prenda Law, Prenda principal Paul Duffy, and paralegal Angela Van Den Hemel — filed a brief in response to Judge Wright's latest Order to Show Cause. You may recall that Judge Wright told her she could do so at the April 2, 2013 hearing.

In this post I will review the arguments in the brief and discuss their significance for the fortunes of Prenda Law and its principals. Let me begin with this: Rosing has filed the best brief I have seen from Penda's side during this whole wretched story. Briefs by Prenda's own lawyers responding to accusations of misconduct have been smug, angry, evasive, and self-righteous. Rosing's brief is professional. It makes colorable arguments, and supports them with authority where there is authority to be had. There's no perfect way to tell an angry federal judge he lacks jurisdiction; she strikes a tone that's firm but respectful. It's well written, well organized, and as comprehensive as prudence permits. This is good work.

But what does it say?

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