Browsing the archives for the Lawyers Behaving Badly tag.


Controlling Public Art By Lawsuit: Japanese-American Citizens Sue To Remove "Comfort Women" Memorial

History, Irksome, Law

I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me.

During the Second World War, the Empire of Japan sexually enslaved women — at least tens of thousands, and perhaps hundreds of thousands — to be raped by its troops. They were forcibly seized from the countries Japan occupied, primarily Korea. Though Japan officially apologized in 1993, in recent years right-wing forces in Japan have been seeking to retract those apologies, asserting that the enslaved women were actually voluntary prostitutes, or that the Empire itself wasn't involved in any coercion. This attempted walkback can best be understood in the broader context of Japanese nationalist politics, in which right-wing politicians play to their base by doing things like visiting shrines honoring war criminals.

Now Japanese-American plaintiffs, served by American megafirm Mayer Brown, are pursuing the agenda of reactionary Japanese politicians through despicable litigation.

Glendale, California is a suburb of Los Angeles. I grew up next door and still live there. It's incredibly diverse with many thriving ethnic communities. In 2013 the City of Glendale erected a modest memorial to the comfort women of World War II in a public park next to the library. Japanese politicians were enraged and have repeatedly demanded that the memorial be removed. The federal lawsuit filed by Mayer Brown seeks to have the memorial removed by force of law.

The plaintiffs in the lawsuit — which I have uploaded here — are Glendale resident Michiko Shiota Gingery, Los Angeles resident Koichi Mera, and GAHT-US Corporation, which says it is in the business of providing "accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role." The plaintiffs complain that the presence of the comfort women memorial in Glendale causes them to suffer "feelings of exclusion, discomfort, and anger because of the position espoused by her city of residence through its display and endorsement" of the monument, and that they avoid the park because it shows a "pointed expression of disapproval of Japan and the Japanese people" and diminishes their enjoyment of the park. Though the lawsuit discusses a controversy over what the Empire of Japan did to women in the war, the complaint unsubtly conveys a position: "These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute."

Plaintiffs argue in part that the City of Glendale did not follow its own rules in approving the exact language on the memorial. But their primary argument — the most shocking one — is that the City of Glendale cannot erect such a memorial because it violates the Supremacy Clause of the U.S. Constitution and interferes with the federal government's sole right to conduct U.S. foreign policy.

Glendale’s installation of the Public Monument has a direct impact on U.S. foreign policy that is neither incidental nor indirect. By installing the Public Monument, Glendale has taken a position in the contentious and politically sensitive international debate concerning the proper historical treatment of the former comfort women. More specifically, given the inflammatory language used in the plaque that is prominently featured alongside the statue, Glendale has taken a position at odds with the expressed position of the Japanese government.

Though the plaintiffs make this argument about the comfort women memorial in Glendale, it is nearly limitless in its application. For instance, though this fight is over a memorial, it could just as easily be about a city council resolution recognizing a day to remember some historical event. Similarly, though this fight is about the agenda of reactionary Japanese forces that seek to suppress discussion of wartime conduct, it could just as easily be about a hundred other historical disputes. If you think that's mere speculation, think again. Glendale, California and the surrounding communities are also home to one of the largest Armenian diaspora groups in the United States. Will Mayer Brown next be suing to force the removal of memorials to the Armenian Genocide, or to prohibit city councils from recognizing it, because it is extremely controversial to apologist forces in Turkey? Given the delicacy of U.S. relationships with the new government of Afghanistan, will someone use the federal courts to police the language of civic war memorials and commemorative statements across the nation, to make certain that they portray the Afghans as our allies?

This is not a First Amendment issue, exactly, because government entities don't have First Amendment rights. But it is an issue of federalism, of local self-determination, and of citizenship. Local citizens, through their local elected government, wished to recognize a historical atrocity using local government money on local government land. Their city did not purport to engage in negotiation with any foreign government or to take any position on behalf of the United States — they just took a position on behalf of its citizens. They did not do anything prohibited by the Constitution, like establishing a state religion. The notion that the federal government or the federal courts should regulate this expression is noxious.

Moreover, the argument against it is vague, unprincipled, and endlessly malleable. If a case like this succeeds, what will the courts say to a Holocaust denier who argues that a memorial is too harsh in condemning Germany, a nation with whom we have dicey relations? The plaintiffs here might argue that the difference is that recognition of the Holocaust isn't controversial and wouldn't anger most Germans, while the comfort women issue has angered Japanese politicians. But that's just another way of saying that foreign politicians should be able to dictate what American towns put on their civic memorials. The more that foreign politicians are willing to make demands and issue denunciations, the less free American towns would be to commemorate historical events. This would drive exactly the sort of entitled, thuggish behavior that Japanese politicians have shown here, issuing churlish demands that a foreign city shut up about their nation's history.

This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences.

Edited to add: It occurred to me what this reminded me of: Croat lawfare trying to get Bob Dylan charged with hate speech for talking about Croat atrocities.

184 Comments

All Across The Country, Prenda Law's Rubble Is Getting Bounced

Law, Politics & Current Events

All of Popehat's Prenda coverage is collected here.

It's been two months since I wrote about Prenda Law. Since then its fortunes — and the fortunes of its principals — have been on the wane. Prenda, John Steele, Paul Hansmeier, Paul Duffy, and Mark Lutz have been suffering devastating blows across the country. Any one of these developments would be grave for any normal lawyer or legal enterprise. Combined, they represent a swiftly accelerating rout. Each development makes it more and more plausible that Judge Wright's referral of Prenda's principals to federal prosecutors will yield a grand jury investigation and, eventually, federal criminal charges. To one side, career and financial ruin loom as multiple courts issue brutal and reputation-destroying sanctions; to the other side, the door to federal prison yawns open.

So what's been going on? Let's look at updates state by state, and then turn to last Thursday's big development in Los Angeles. Brace yourself; this is a long post.

Continue Reading »

421 Comments

A Fight-For-Free-Speech Story: What The Hell Is It With Dentists?

Law

This is a story about dentists, legal threats, and pro-bono badassery.

What the hell is the deal with censorious dentists?

There's this guy. Let's call him Bob. Bob's wife had a bad experience at a dentist. Bob set up a site complaining about the dentist. Bob learned, in this process, that the dentist had a history of threatening negative Yelp reviewers with bogus lawsuits.

There's a bad lawyer. Let's call her Bogus Betty. The dentist hired Bogus Betty, and Bogus Betty filed an application for a temporary restraining order and injunction under California's harassment law against Bob, under the theory that a gripe site about a dentist is dangerous harassment that requires a restraining order. This is the law that you use to keep your abusive ex from showing up at your door with a baseball bat, or your nutty former employee from crank-calling you 80 times a day.

Bob wasn't threatening or harassing the dentist. Bob made a web site critical of the dentist.

Bob needed help, very fast. I put out a request. The thoroughly awesome David Casey stepped up. Dave's in San Diego and Bogus Betty filed in LA County, but Dave stepped up anyway, because he believes in free speech.

Dave and Bob got the help of Adam Steinbaugh and Nicholas Weaver and put together a kick-ass brief. Dave wrote it, Adam assisted, and Nicholas acted as an expert demolishing Bogus Betty's technological arguments. Before the filing, Bogus Betty was threatening and refusing to negotiate. After receiving the filing, Bogus Betty was asking to negotiate. At the hearing, Bogus Betty asked for more time to cut a deal; the judge refused, required her to dismiss, told her there was nothing in her application warranting a restraining order, and told her not to come back with a case like that.

A beaten Bogus Betty cut a deal very satisfactory to Bob. Why am I not naming and shaming? Because Bob likes the deal and it's in his best interests and that's what I care most about. If I catch the dentist or Bogus Betty being censorious thugs again I'll drop the hammer on them in a heartbeat.

I say this over and over: the system is broken, because it allows people like this dentist and Bogus Betty to silence people like Bob by making low-risk threats and filing low-risk lawsuits. Most people can't afford to hire a lawyer to resist. The California anti-SLAPP statute is great, but it requires a capable lawyer up front.

There's only one way under the current system that people of modest means can be protected from thuggery. That way is the generosity and service of capable lawyers like David Casey and Adam Steinbaugh, as well as concerned non-lawyers like Nicholas Weaver. Thanks, gentlemen. You rock.

Will you answer the call?

46 Comments

Team Prenda Is A Classy, Classy Bunch

Effluvia

All of Popehat's Prenda coverage is collected here.

It really can't be easy to be on Team Prenda these days. Hordes of detractors scrutinize your every legal filing. Mean bloggers say embarrassing things about you. The threat of sanctions always looms. A tangled web of legal proceedings across the country complicates your efforts and constantly generates new evidence and assertions.

So, I guess I can see how a Prendarast could lose his cool on occasion.

Take Jacques Nazaire. Nazaire has found the waters in the Prenda lagoon to be unstill and unpleasant. Craigslist court appearances never generate such negative attention. It's enough to make a man go off on a rant about a witness or launch an ill-conceived detour about gay marriage or rend his garments and bewail how posts by mean blogers "lead to anger."

So: when Mr. Nazaire asked a Georgia federal judge to quash some subpoenas calculated to uncover facts about Team Prenda, it is perhaps understandable that he indulged in a little dig at his detractors:

In addition to the facial defects of the subpoenas, these subpoenas should be quashed because the “Google” and “Comcast” subpoenas are issued for the sole purpose of gathering information of third parties and the undersigned and putting them in display on such websites as “techdirt”, “dietrolldie” and “Popehat”.

Actually, I suspect that the purpose of the subpoenas is to gather evidence to test the theory that Team Prenda, far from being a victim of piracy of pornographic videos, deliberately posted the videos on piracy sites to attract downloaders in a scheme to manufacture copyright violation claims. Watch this space for a discussion of the legal significance of that theory.

Anyway, Mr. Nazaire's gripe was banal and unsurprising — but also rudely exclusionary. How could he have forgotten the site Fight Copyright Trolls, one of the most steadfast foes of Team Prenda? The proprietor of Fight Copyright Trolls wanted to know, too. So he wrote Mr. Nazaire, and got a response. And such a response!

Dear Mr. Nazaire,

In 2:12-cv-00262-WCO Document 68 (filed 08/26/13) you wrote:

10. In addition to the facial defects of the subpoenas, these subpoenas should be quashed because the “Google” and “Comcast” subpoenas are issued for the sole purpose of gathering information of third parties and the undersigned and putting them in display on such websites as “techdirt”, “dietrolldie” and “Popehat.”

I cannot express the extent of emotional distress this paragraph caused to the undersigned. You mentioned three of the major resources that cover Prenda, but failed to include my “fightcopyrighttrolls.” FYI, while my blog is not the oldest, it has the most extensive coverage of the Prenda soap opera: if you navigate to the “Prenda” tag (http://fightcopyrighttrolls.com/category/clans/prenda/), you will find 122 posts, not to mention numerous informative pages. Thus, not including “fightcopyrighttrolls” where it belongs is offensive and scandalous.

Please govern yourself accordingly and refrain from hurting my feelings in the future.

Very truly yours,

SJD

Quoth Mr. Nazaire in response:

I like your Mom. She's a nice lady but not so good in the sack. I guess she has too much mileage on that poon.

Tsk Tsk Tsk. All worn out.

You think that you are funny, huh?

How's that for funny?

Now, insulting somebody's mother is a venerable rhetorical device. It can be a stylized vehicle for creativity, as in a yo' momma competition, where it's not actually about any real person. (The geeky ones are the best. "Yo momma so fat, her patronus is a Ding Dong.") It can be delivered to inflame with some degree of style. ("I wrote a paragraph about your blog, SJD, but I left it on your mother's nightstand.") But it can also fall flat and just sound creepy and angry and needy. So it has here.

For someone who spends so much of his time angry, you would think that Mr. Nazaire would be better at it.

698 Comments

Prenda Law Open Thread

Effluvia

Will I write about Prenda again someday? Yes. Meanwhile here is a thread with open comments.

493 Comments

The Mega-Marketeers: Just As Bad As The Mini-Marketeers, If Not Worse

Law Practice

When I make fun of awful legal marketing on this blog, I often borrow Eric Turkewitz' phrase "outsource your marketing, outsource your reputation and ethics." Because some of the incidents we talk about involve small-scale artisanal asshattery, readers might draw the incorrect conclusion that I'm saying attorneys should go with big, established, "reputable" marketeers to get reliable results. Nope. The most established institutions have some of the worst practices in marketing.

Today I'd like to share with you some truly awful spam from Thomson Reuters, and find out how many of our attorney readers received it as well.

Continue Reading »

37 Comments

Plumbing The Depths of Legal Marketing: What Does the ABA Think You Should Do To Get Clients?

Law Practice

Say what you want about the American Bar Association, but it has a certain amount of credibility. The ABA may not be a locus of excellence, but it has a bajillion attorney members, it participates (for better or worse) in vetting judicial nominees, it accredits law schools, it gives fairly popular if overpriced continuing education presentations, and it publishes like a demon. If the ABA recommends a practice, that practice will be seen as normal in the legal profession, or at least not as an outlier.

Should that make us happy? No. No, it should not.

This month the ABA shares with us a collection of legal marketing strategies. I could say that I am shocked, or just disappointed, at the result, but both of those sentiments suggest an element of surprise, which I am lacking.

Continue Reading »

46 Comments

Criticize Your Dentist? That's a Jailin'

Law

Confession time: I've always been a little nervous at the dentist. X-rays pointed at my head? Poking my mouth with sharp objects? Using rotating buffers with unidentifiable grape-flavored goo on my teeth? Prone in a awkward chair? Not if I can help it. My dentist is a distant cousin who I've seen my whole life and I still feel like he or his staff might go all Laurence-Olivier-versus-Dustin-Hoffman on me at any moment.

So you can imagine that I'd never trust a dentist who reacts to negative online reviews by having his lawyer threaten the reviewer with criminal charges. Would you?

Continue Reading »

138 Comments

Prenda Law: The Sound of One Shoe Dropping

Law

All of Popehat's Prenda coverage is collected here.

There have been many small-to-medium developments in the Prenda Law saga. I'm preparing for trial, so I won't be covering them any time soon. But I will leave you with one: a consequence for a Prenda Law lawyer in the Ninth Circuit.

You may recall that Prenda figure Paul Hansmeier has dabbled in representing people objecting to proposed class action settlements. Apparently Mr. Hansmeier was seeking admission to the bar of the Ninth Circuit in order to represent an objector on the Groupon class action. The Ninth Circuit, having seen Judge Wright's order, is less than welcoming in an order by an appellate commissioner:

On April 5, 2013, attorney Paul R. Hansmeier entered his notice of appearance as counsel of record for Objector-Appellant Padraigin Browne. At that time, Hansmeier’s application for admission to the bar of the Ninth Circuit was pending.

On May 15, 2013, the court ordered that Hansmeier’s application for admission be held in abeyance pending the outcome of his referral to the Minnesota State Bar and the Central District of California Standing Committee on Discipline in Ingenuity 13 LLC v. Doe, No. 2:12-cv-8333-ODW(JCx) (C.D. Cal. May 6, 2013) (Order Imposing Sanctions). See In re Hansmeier, No. 13-80114.

Because Hansmeier’s application for admission to the court’s bar cannot be approved at this time, he cannot represent parties in this appeal. See Fed. R. App. P. 46(a); 9th Cir. R. 46-1.2. Accordingly, within 14 days after the filing of this order, Hansmeier shall withdraw from this case. Hansmeier’s notice of withdrawal shall contain proof that he has informed Browne that Hansmeier cannot represent him in this court and that Browne may obtain new counsel or represent himself. Hansmeier’s notice of withdrawal shall also contain contact information for Browne unless a notice of substitution of counsel has been filed by the time Hansmeier files his notice of withdrawal.

Failure timely to comply with this order may result in sanctions.

In other words: no, Paul, you can't have admission to the Ninth Circuit until this is cleared up, and we won't let you represent a client before us in the interim.

Actions have consequences.

(Thanks to a tipster for word of this order)

1,022 Comments

Rakofsky Versus The Internet: Advantage, Internet

Law, Law Practice

Remember Joseph Rakofsky? He's the brand-new lawyer who thought it was prudent and appropriate to attempt, as his first trial, the defense of a man accused of murder. Havoc ensued. A federal judge granted Rakofsky's request to withdraw, which coincided with the defendant's request for a new lawyer, and granted a mistrial. In doing so the judge said that in the alternative he would have granted a new trial based on Rakofsky's incompetence:

I must say that even when I acquired [sic -- probably "inquired of"] Mr. Deaner [the defendant], I — as to whether or not, when the Court found out through opening, at least near end of the opening statement, which went on at some length for over an hour, that Mr. Rakofsky had never tried a case before. And, quite frankly, it was evident, in portions of the trial that I saw, that Mr. Rakofsky — put it this way: I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

It appeared to the Court that there were theories out there defense theories out there, but the inability to execute those theories. It was apparent to Court that there was a — not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to t detriment of Mr. Deaner. And had there been — If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.

So I am going to grant Mr. Deaner's request for new counsel. I believe both – it is a choice that he has knowingly and intelligently made and he understood that it's a waiver of his rights. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable perrson could expect in a murder trial.

And later in that hearing . . .

And I think that the – As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.

This was widely reported, resulting in Rakofsky suing a ridiculous array of news outlets and lawbloggers, and stubbornly pursuing those claims in what became known as "Rakofsky versus the Internet."

Last week he lost — a judge granted motions to dismiss his case. That represented two major victories last week for Marc Randazza, who not only represented many lawbloggers in Rakofsky's case, but also crushed infamous copyright troll Righthaven on appeal. This will not make him any easier to live with.

Rakofsky's lead argument was that he was defamed because his detractors reported that a judge had declared a mistrial based on his incompetence, when in fact the judge had declared a mistrial based on the defendant's request and had only said that in the alternative he would have granted a mistrial based on Rakofsky's incompetence. The correct rejection of this argument is a good example of the substantial truth doctrine, also known as the "gist" or "sting of it" doctrine — the rule that says that a statement isn't defamatory if the main insulting thrust of it is true. So, if you accuse me of molesting squirrels in a public park, and I sue you for defamation on the grounds that my companion was a chipmunk and I was in the storm drain adjacent to the park, my defamation suit against you should not survive. (Unless, I suppose, we live in a community where squirrels are held in high esteem but chipmunks are generally despised.) Here, it was patently ridiculous for Rakofksy to maintain that the "mistrial resulting from incompetence" story was meaningfully misleading or false. The trial judge was brutally frank in his evaluation of Rakofsky's ability, and trial judges don't just go around letting defendants change lawyers mid-trial for no reason.

There are a few lessons to learn from this regrettable affair.

1. Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.

2. Rakofsky doubled down. Had he slunk away after his grave error in judgment, giving thanks that his rashness did not lead to someone being convicted, he might have learned the trade, become a competent lawyer, and overcome a brief flurry of bad publicity. Instead, he chose to file a vexatious lawsuit. Now he belongs to the ages. He will never, in the half a century he has left to him, live this down.

3. Yielding to censorious thuggery like Rakofsky's is harmful to your reputation. Cowardly and unprincipled University of St. Thomas School of Law, I'm looking at you. You yielded to a frivolous suit and taught your students and alumni a terrible lesson about being a lawyer and a citizen. You encouraged vexatious and speech-chilling litigation. Let your cringing suckitude be proclaimed throughout the land.

4. Judge Wright's photon torpedo salvo notwithstanding, most judges are reluctant to award sanctions even against conduct that richly deserves it. Here the judge declined to award sanctions against Rakofksy. I'm inclined to agree with Scott that Rakofsky's youth, inexperience, and nationwide humiliation probably stayed the judge's sanctioning hand.

5. If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody's reminding us that you have an obligation to know what you're doing before you accept the client. Somebody should.

63 Comments

Hilarious New Team Prenda Argument: Judge Wright's Order Is Irrelevant Because of Gay Marriage

Law, WTF?

All of Popehat's Prenda coverage is collected here.

When last we left the Prenda Law team, it was reeling from a devastating sanctions order and referral for criminal investigation. Now, as predicted, defense attorneys across the country are filing that order in cases brought on behalf of Prenda Law clients.

This has already led to one comical result.

You may remember that Attorney Jacques Nazaire, representing Prenda Law entity AF Holdings in Georgia, filed an angry and rather bizarre opposition to a defendant's motion for sanctions there. Now, in response to that defendant filing Judge Wright's order — which is what Judge Wright clearly contemplated, and which involves informing the Georgia federal court of an order that is patently relevant to the proceedings — Jacques Nazaire has doubled down and flipped out.

In his objections to defendant Patel's filing of Judge Wright's order about Prenda and AF Holdings, Nazaire argues that the filing is late and not authorized by the local rules, because it is effectively a "sur-reply" – that is, a reply to a reply. That's what just about any lawyer would say; it's within the realm of reason.

But then:

9. While this Court may or may not agree with some of the issues presented in
the California case, unbeknownst to the defendant, the California case will not necessarily become a mandate on this Court. It is solely within the discretion of this Court to follow or not follow the decisions made in the California case.

10. The defendant should realize that California has different laws than
Georgia, a different Governor than Georgia; a different legislative body than Georgia, different business needs than Georgia and different views than Georgia and as such all of its decisions cannot serve as a mandate for Georgia.

11. For example the California Courts have legalized gay marriage. Perry v.
Schwarzenegger 704 F.Supp.2d 921 (N.D. Cal., 2010);Certified question, 628 F.3d 1191 (9th. Cir.); Answered 52 Cal.4th 1116 (2011) Affirmed, 671 F.3d 1052 (9th Cir.) Such a decision cannot serve as a mandate on Georgia Courts to legalize gay marriage as well.

Sure, Nazaire is trying to make a point that the decisions of a United States District Judge in one state do not dictate the decisions of a United States District Judge in another state. But he's doing it in a hilariously silly and inflammatory way. Moreover, the core argument is misleading: both cases are copyright cases premised in federal law, and Judge Wright's decision was premised in federal law. This isn't a case about California or Georgia state law.

Nazaire then proceeds to start throwing Prenda principals under the now battered and flat-tired bus, suggesting he shouldn't be sanctioned:

19. Defendant also argues that plaintiff’s counsel should have made reasonable inquiry of the signature. Prior to filing the document, the undersigned contacted Prenda Law to find out whether or not Mr. Cooper would be available to testify at trial but was advised that they could not locate Mr. Cooper. The undersigned was advised that Mark Lutz and Peter Hansmeier would be available to testify as witnesses. Had the undersigned realized that the Electronic Frontier Foundation was hanging with Mr. Cooper, he would have been able to track down Mr. Cooper and questioned him about the documents. It turns out that Mr. Cooper was a caretaker of one of the properties of a Prenda Law member and had left said property in August, 2012.

20. Therefore, even if the undersigned had placed a knife to the throats of each of Prenda’s members, none would have been able to give him Mr. Cooper’s contact information at the time on November 5, 2012 when Plaintiff commenced its law suit. It is certainly not the first time a company has lost contact with an agent (or alleged agent as stated).

I'm going to give Mr. Nazaire Internet Points for responding to Star Trek references with a "Hangin' With Mr. Cooper" reference that is far more subtle.

Nazaire is also infuriated that his opposing counsel submitted one of his emails:

32. Additionally, an email containing information that was sent by the undersigned, in strict confidence, to Mr. Chintella was presented as evidence in that California case by Mr. Chintella. Chintella went behind plaintiff’s counsel’s back without any notification and submitted the email contents as evidence in order to influence the California case; the same case that now he presents to this Court as a mandate; the same Georgia case from which he intends to profit.

Yeah, here's the thing: if you write something to opposing counsel, especially in a case like this, you should expect it can get filed in court if it's relevant.

Nazaire's filing is furious and more than a little manic.

Is this real life?

Hat tip to Fight Copyright Trolls, via Twitter.

328 Comments

Origin of the Pirate Resignation Letter

Effluvia, Geekery, Humor

As far as I've been able to tell through clever googling in my favorite search engine, the renowned and much beloved Pirate Resignation Letter was written by Chris Castle and delivered to James Bear (deceased), former managing partner of Knobbe, Martens, Olson & Bear, LLP.

After using the letter, Castle shared it with his friend, user "Otter Von Pop" of the (now defunct) BirdSunEye.com forum, and that user posted it on 17 October 2003 both as a forum post and as a Word doc attachment.

Later that morning, Chris Castle, posting as "The Bartender" confirmed the story and reported on the (first ever!) recipient's humorless (or brilliantly funny!) reply.

Harvested from the past and hosted right here on Popehat is that original forum thread:

Original Pirate Resignation Letter Thread

Enjoy this bit of net.history! And if you have anything to add about the people or circumstances, please share what you know in the comments.

UPDATE: There's a new pretender to the helm!

23 Comments

Prenda Law's Trip To San Francisco Turns Out Badly

Effluvia

Last week we invited Cathy Gellis to guest-post her observations of a hearing in AF Holdings v. Navasca, a Prenda Law case. Today, she gets to guest-post the result: an order that may be the harbinger of how courts will treat Prenda Law and its associated Prendarasts. 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.

———————————————————————————-

Later this week it will be World Intellectual Property Day, the day that the World Intellectual Property Organization has selected for us to appreciate all that intellectual property has to offer us.

Might that include the welcome, and potentially expensive, come-uppance of those who have sought to unjustly abuse its laws for their own enrichment? We are speaking in this instance, of course, of Prenda Law and the latest news of its self-induced misadventures in the San Francisco federal court.

When we last left our heroes Paul Duffy had managed to appear in open court and yet somehow seemingly not directly inculpate himself in Prenda Law's affairs, at least no more than he had done so previously. He was there because Prenda Law is now running for the exits, seeking to dismiss AF Holdings' case against defendant Joe Navasca "without prejudice" — meaning, with the option to re-file. In this particular case it needed the court's permission to do so. As Judge Chen noted in his devasting-to-Prenda ruling today:

Under [Federal Rule of Civil Procedure] Rule 41, a plaintiff may voluntarily dismiss without a court order by filing a notice of dismissal before the defendant serves an answer or a motion for summary judgment. See Fed. R. Civ. P. 41(a)(1)(A). Here, because Mr. Navasca has filed an answer, see Docket No. 20 (answer), AF may dismiss only by an order of this Court and on terms that the Court considers proper. See Fed. R. Civ. P. 41(a)(2).

Prenda did get the order it sought to drop the case — but not on terms it asked for, and certainly not on terms it's going to like.

The judge is always Wright

The ruling began with a summary of the case thus far, a calm, methodical, and accurate recounting that serves to buttress Judge Chen's ultimate decision. Lest there be any doubt, he knew what had happened in Los Angeles. After first discussing how Prenda Law had apparently tried to stay discovery to prevent the (ultimately disastrous deposition of AF Holdings' representative), the court continued:

It is possible that AF was motivated to seek a stay of discovery not only to deprive Mr. Navasca of evidence to oppose AF’s anticipated motion to reconsider but also to prevent adverse information from being brought to light which could be used against it in a proceeding before Judge Wright of the Central District of California. Notably, on February 7 – i.e., the same day that AF filed its motion to stay – Judge Wright issued an order to show cause as to why sanctions should not be issued against AF’s counsel based on, inter alia, the Alan Cooper problem. (emphasis added, more on that later)

[As a wag on Twitter said, "the Alan Cooper Problem" would be an excellent name for a band. -- Ken]

The Judge Chen even noted in a footnote that Prenda Law asked for the stay that very evening. He then went on to note that "the day after Judge Wright’s order to show cause – or in the immediate days thereafter, AF and/or a related entity (Ingenuity 13) initiated voluntary dismissal of numerous copyright infringement cases that they had initiated in federal courts in California." For those cases Prenda Law was able to get out of them "without court intervention and without risk of liability for costs as the defendant had not answered or filed a motion for summary judgment.

But such a smooth escape was not an option here:

In the instant case, the Court finds that, if it were to dismiss AF’s action without prejudice, then Mr. Navasca would in fact suffer legal prejudice in that he would be deprived, at the very least, of the benefit of rulings favorable to him. In other words, the Court finds that AF is seeking to dismiss the case in order to avoid an adverse determination on the merits as well as the effect of other unfavorable, though not necessarily, dispositive rulings of this Court.

Judge Chen listed three examples of very real adverse rulings Prenda Law was facing, which I'll touch on in reverse order. One was that it was trying to avoid the consequences of the ruling requiring the undertaking (in other words, the ruling requiring them to post a bond to cover costs if it lost), like it had to face in the Trinh case. In that case Prenda Law's failure to make the undertaking allowed the defendant to move for an involuntary dismissal, thereby making it eligible for a fee award as a prevailing party. Given that Prenda Law really didn't want to pay for the undertaking in this, the Navasca case. Yet, as Judge Chen noted, Prenda was also unwilling to appeal the order requiring it to post the undertaking despite being given ample opportunity to. This case was therefore inevitably heading towards the same end as the Trinh one, a fate Prenda Law was now trying to dismiss itself out of in order to avoid.

Then there was the second example:

AF also risks an adverse determination on the merits as a result of the investigation that Judge Wright has been conducting in the cases before him in the Central District of California. As Mr. Navasca points out, it is telling that, the day after Judge Wright issued his order to show cause, AF and/or Ingenuity began to initiate voluntary dismissal of a number of cases that it had filed in California. If these cases had validity or if AF had a good chance of prevailing on the merits, then it is hard to imagine that it would give up all these cases.

And then there was the first example.

The Alan Cooper Problem

AF is likely to face an adverse determination on the merits because of its apparent inability to prove standing to assert its claim of copyright infringement. Throughout the proceedings before the Court, AF has never offered a declaration from its representative “Alan Cooper” showing that he was a signatory to the assignment document that purportedly transferred ownership of the copyrighted material at issue to AF.

The Alan Cooper problem is at the heart of Prenda Law's current troubles. Supposedly at some point, an actual copyright holder transferred its copyright to the purported AF Holdings. Had this all worked the way Prenda Law claimed, AF Holdings would now be in the position to fully enforce any rights that copyright entitled to it, just as the predecessor owner would have been. Prenda Law "has staked its position on the argument that the Copyright Act only requires proper authorization for assignment by the copyright transferror, not the transferee," Judge Chen summarized. And proper authorization by the transferor is, indeed, important; we saw what happened in the Righthaven cases when the transfer was improperly done (they ended up getting dismissed). But transferring the copyright is only the first step: it shows that someone has a copyright. It doesn't show that someone has standing to come into court to enforce it. Given that Prenda Law has been unable to substantiate who that someone is, all of these cases have become suspect on that basis. Judge Chen noted:

[I]t is telling that AF moved for a voluntary dismissal only two days after its 30(b)(6) deposition was taken, [that's referring to the ridiculous deposition of Paul Hansmeier as the representative of AF Holdings] during which problems related to its standing were explored and exposed by Mr. Navasca.

And the band of tiny violins played on

As to Prenda Law's arguments for why dismissal was not improper, the court was unimpressed. The complaints of spoliation (that is, destruction of evidence) were not compelling, and, indeed, Judge Chen noted the magistrate's earlier caution to Prenda Law that “allegations of spoliation are extremely serious” and that it should “review the facts very carefully before pursuing this avenue based solely on an eHow.com article. In particular, [AF] should review the expert declaration that Navasca filed with his letter brief, to fully understand the purpose and effect of CCleaner.” (emphasis added)

However, there is no evidence to suggest that AF did that or any other investigation into whether CCleaner would in fact irrevocably destroy electronic files. Furthermore, as the Court noted at the hearing, even if CCleaner did irrevocably destroy electronic files, that might actually work in AF’s favor; in other words, the stronger the evidence of improper spoliation, the better the chance AF stood of obtaining, e.g., an evidentiary sanction or adverse inference in its favor based on the spoliation.

As to the complaint that the undertaking made the case too expensive, the court was also unmoved. First, Prenda Law could have appealed the order but chose not to. It also could have tried to demonstrate its claimed poverty, but it didn't do that either. Instead it claimed the expense made the case not worth pursuing, to which Judge Chen declined to cry them the river they sought.

[T]o the extent AF suggests that it may be financially able to pay, but the bond is simply more than the value of the case, see Mot. at 2 (arguing that Plaintiff cannot “afford to tie up nearly $50,000 in capital simply in order to proceed with its claims against a single infringer”), it ignores the fact that a bond may be required in any given case in California (based on California specific law). As the plaintiff which initiated the action, AF knew at the outset that a bond might be required. A plaintiff cannot invoke the benefits of the judicial system without being prepared to satisfy its obligations as a litigant.

The court then noted that Prenda Law had tried the same move in the Magsumbol case, trying to withdraw the case before it could get hit with an undertaking requirement, an effort that was denied there too.

Alan Cooper's ghost

For all the aforementioned reasons, Prenda Law was granted its motion to dismiss, but with prejudice, thereby making the defendant, Mr. Navasca, a prevailing party able to pursue an award under the copyright statute for the fees he expended in having to defend himself in this case. However, although the ruling was issued today, April 23, it won't be entered (or put into effect) until April 29. That's because Prenda Law needs to do something first.

If you are just now tuning into coverage of this mess, Prenda Law's problem is that it sued ostensibly on behalf of an entity "AF Holdings," the entity that purportedly now owns the relevant copyright. But when called to account for who AF Holdings is, Prenda Law can't or won't do it, leading to the conclusion that it is none other than Prenda Law itself, which would at minimum violate court rules in bringing this litigation and may suggest even more wrongfulness given how it has obfuscated the ownership question. The Alan Cooper problem described above stems from certain paperwork allegedly "signed" by a Mr. Cooper that doesn't seem to exist, thereby creating a fundamental standing issue for all these cases, an which Judge Wright has diligently been exploring.

Ah, but Prenda Law has a workaround. See, AF Holdings is really owned by this trust, one apparently called "Salt Marsh." We learned from an angry, angry filing last week that "Salt Marsh" is arranged for the benefit of the as-of-yet hypothetical and unborn children of Mark Lutz, a former paralegal for Steele and Hansmeier. Who controls and speaks for Salt Marsh? That's not clear. But that didn't prevent Salt Marsh from having "signed" the ADR document earlier in this case. It was a pro forma filing, basically an attestation that each of the undersigned had read the court's rules about alternative dispute resolution (an option parties can often choose to pursue instead of full-on litigation). And it was signed by a "Salt Marsh," although one wonders how a non-human entity could possibly attest to reading anything. [Cathy is not a true geek and therefore doesn't know SHODAN. Forgive her. --Ken] There had to have been a human being behind that attestation. But whom?

That's what the court wants to know: Who actually signed?

Finally, the Court addresses Mr. Navasca’s request that it order AF to produce the original of an ADR certification that was e-filed by AF as Docket No. 8. The ADR certification that was e-filed does not contain any actual signature from an AF representative; rather, there is simply the following e-signature: “/s/ Salt Marsh, AF Holdings Owner.” Docket No. 8 (ADR certification). As Mr. Navasca points out, under the Civil Local Rules, AF’s counsel should have maintained a copy of the ADR certification containing the original signature as a part of its files. See Civ. L.R. 5-1(i)(3) (providing that, in the case of a Signatory who is not an ECF user, the actual filer of the document “shall maintain records . . . for subsequent production for the Court, if so ordered, or for inspection upon request by a party, until one year after the final resolution of the action (including appeal, if any)”). Because Mr. Navasca has asked the Court for relief encompassed by the Civil Local Rules, the Court grants the request. AF’s counsel is hereby ordered to produce the original of the ADR certification, containing the original signature of “Salt Marsh” by April 29, 2013. If AF’s current counsel does not have the original document, then it must contact former counsel to obtain the document. On April 29, AF’s current counsel shall also file a declaration with the Court, stating whether it was able to provide a copy of the original document and, if not, why not.

(emphasis added)

Like a con artist who's taken a few too many marks with his shell game, Prenda Law is being compelled by the court to reveal how its magic has worked. We'll see in a few days what it will say.

—————————————————————-

Ken's postscript: Thanks to Cathy for following up on her observations of the Navasca case. This order is a body blow to Prenda Law. Judge Chen — who recently awarded substantial attorney fees against the infamous Charles Carreon in a case in which Cathy is co-counsel [edited: oops, no it wasn't -- that was a different judge] — is openly suggesting that Prenda's conduct suggests malfeasance and evasion of potential negative rulings. He invited Navasca to file a separate motion for fees, and this order strongly suggests that he will grant such a motion. Judge Chen's dismissal of Prenda's "it doesn't matter if Cooper's signature is forged" argument suggests that he suspects that Prenda's entire litigation strategy is premised on fraud — that Prenda has manufactured the dispute, and that AF Holdings is merely a front for Prenda Law lawyers. Finally, Judge Chen's order that Paul Duffy produce the original "Salt Marsh" signature presents a conundrum for Duffy. Brett Gibbs was Prenda's counsel in this case at the time when Prenda Law filed this case, and probably is the one with direct knowledge of the document purportedly electronically signed by Salt Marsh. Gibbs and Duffy are not currently on very friendly terms. If asked, what will Gibbs say? What can Duffy say under oath, in a declaration, about the Salt Marsh signature without digging himself deeper into this situation? It's bad, very bad, for Prenda — and like the transcript of the hearing before Judge Wright at which Prenda took the Fifth, you can expect attorneys across the country to file this order in Prenda Law's surviving cases.

124 Comments

Angry Prenda Is Angry

Law

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.

154 Comments

Victory For Blogger Patterico In Free Speech Case

Law

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

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