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Posts Tagged ‘Millennium TGA’

At what point does an attorney stop being a copyright troll?

Anyone who knows me knows that John Steele [one of the original trolls from 2010] and I are not the closest of friends. In our many conversations, I have told him quite frankly that I considered him an enemy, and I have told him [and the world] what I think about his lawsuits.  We have sparred over the years over the forums, over clients, over settlements, and to date, everyone knows what I think about his copyright trolling efforts — the “grand extortion scheme” him and his local counsel have foisted over countless victims.  Together, Steele’s law firm — whether it is under the name “Steele Law Firm, PLLC,” “Steele Hansmeier, PLLC,” “Prenda Law Inc.,” (or even more recently, “Joseph Perea, P.A.” [although I have no idea if Joseph Perea is acting on his own, or whether this is a “fake” company, and he is still working under Prenda Law Inc.]) — has inflicted painful damage over the retirement accounts and savings accounts of COUNTLESS people (many of whom had NOTHING to do with the downloading or the hacking they were accused of doing).

The big elephant in the room has always been “open wi-fi”. Yet guilty or not, people still pay up, and John Steele profits.

The concerning thing about John Steele is that even he refers to himself as a copyright troll, and he appears to be proud of it.  However, while the classic definition of a “troll” is an enterprising attorney who has taken advantage of the legal system (or a loophole or a weakness in it) for his client’s material benefit, I understand a “copyright troll” term in the bittorrent lawsuit context to more commonly mean “an attorney or a company who sues many internet users for the purpose of extorting multi-thousand dollar settlements from the accused, regardless of whether or not they are guilty, AND who has NO INTENTION OF MOVING FORWARD AGAINST ANY OF THOSE DEFENDANTS IN THE FORESEEABLE FUTURE.” In short, a copyright troll is someone who sues a lot of people and demands settlements through robocalls, “scare” letters, and threatening phone calls, but who has NO INTENT to move forward against those individuals should they decide not to settle.

The problem is that I’m not so sure that definition still holds, because John Steele, along with his threateningly growing number of local counsel across the U.S. are naming defendants.

RECAP: Initially, John Steele sued hundreds and thousands of defendants at a time, most of whom did not live in the state in which they were sued. Those were the older cases, most of which have all gone bust because the courts lacked PERSONAL JURISDICTION over the defendants. That was where we saw the “Congratulations to the Cashman Law Firm, PLLC clients who were SEVERED AND DISMISSED from [whatever] lawsuit” posts in 2010-early 2012. Then Steele smartened up. He (though his local attorneys) started filing SMALLER CASES where in many cases, the defendants lived in the states in which they were sued. Hence JURISDICTION WAS PROPER. However, even there, John Steele was still a copyright troll.

But, eventually people caught on that JOHN STEELE WAS NOT “NAMING” ANYONE AS A DEFENDANT, and no doubt his cases lost any credibility the might have had. Even judges started calling his cases a grand extortion scheme, and even in the news today, SOME JUDGES are shutting down his cases IMMEDIATELY before you — the accused bittorrent user — learned that you are sued. In other words, their initial “MOTION FOR EARLY DISCOVERY” to send subpoenas to the ISPs to learn the identities of the IP addresses / John Doe Defendants are here-and-there beind DENIED. But even here, John Steele is still a copyright troll.

Where John Steele loses the status of “copyright troll” is when he starts going after individual defendants in the courtroom. Once he files a First Time Videos, LLC v. James Swarez (a fictitional name), and James is now dragged into a lawsuit kicking and screaming and is forced to hire an attorney to file an “answer” with the court, and then James needs to give up his computer to some sleazy digital forensics experts hired by the attorneys (or he can hire his own), and he has to actually fight a real copyright case on the merits of whether or not he actually downloaded the copyrighted works he was accused of downloading in the lawsuit, well, at this point, John Steele is no longer a copyright troll, but rather, John Steele becomes merely a predatory attorney who is suing someone on behalf of his client for the violation of his client’s “copyright rights.”

Now the shift that is important to note is that in the olden days, John Steele did not name anybody. He never did, and for a while, many thought he never would (except perhaps one here or there just to prove to the courts or the world that he could and would name defendants).

However, the new strategy is that he *is* naming defendants. In fact, below is a list of defendants (for their own privacy [so that their names do not show up on search engines following this post — because PACER court documents often don’t get indexed on the search engines, but my posts do], I have edited out their last names, except for a few notorious cases) who have been named in their lawsuits (and this list is a crude list, some of which are state cases, and I even know of a few cases which are not on here):

DEFENDANTS NAMED IN ALABAMA
Lightspeed Media Corporation v. Dewey W., 05-CV-2012-900893 (Dewey W.)

DEFENDANTS NAMED IN ARIZONA
First Time Videos, LLC v. Gary P., 2:12-cv-01488-ROS (Gary P.)
Lightspeed Media Corporation v. Adam S., CV2012-053194 (Adam S.)

DEFENDANTS NAMED IN CALIFORNIA
AF Holdings LLC v. John Doe, 2:11-cv-03076-LKK-KJN (Francisco R.)
AF Holdings LLC v. John Doe, 3:11-cv-05633-JSC (Vu C.)
AF Holdings, LLC v. John Doe, 3:12-cv-02049-EDL (Josh H.)
AF Holdings, LLC v. John Doe, 5:12-cv-02048-HRL (John B.)
Boy Racer Inc. v. John Doe, 4:11-cv-06634-DMR (Daniel C.)
Boy Racer, Inc. v. John Doe, 1:11-cv-01935-LJO-SKO (Anthony N.)
Boy Racer, Inc. v. John Doe, 3:11-cv-05628-JCS (Samuel T.)
Boy Racer, Inc. v. Philip W., 2:11-cv-03072-MCE-KJN (Philip W.)
Hard Drive Productions, Inc. v. John Doe, 2:11-cv-03074-KJM-CKD (Jeff G.)
Hard Drive Productions, Inc. v. John Doe, 2:11-cv-03075-JAM-JFM (Kenneth S.)
Hard Drive Productions, Inc. v. John Doe, 3:11-cv-05634-JCS (Seth Abrahams)
Hard Drive Productions, Inc. v. John Doe, 4:11-cv-03826-DMR (Soukha P.)
Hard Drive Productions, Inc. v. John Doe, 4:11-cv-05630-YGR (Liuxia Wong)
Hard Drive Productions, Inc. v. John Doe, 5:11-cv-05631-PSG (Isaac K.)
Lightspeed Media Corporation v. Reza S., 37-2012-00100384-CU-BC-CTL (Reza S.)
Millennium TGA, Inc. v. John Doe, 2:11-cv-03080-MCE-KJN (Joe V.)
Millennium TGA, Inc. v. John Doe, 3:12-cv-00792-MMA (Tyree P.)
Pink Lotus Entertainment, LLC v. John Doe and Steve P., 2:11-cv-03073-WBS-KJN (Steve P.)
Pink Lotus Entertainment, LLC v. John Doe, 2:11-cv-03077-JAM-KJN (Jason A.)
Lightspeed Media Corporation v. Myron H., 12-CV-0952 (Myron H.)

DEFENDANTS NAMED IN ILLINOIS
First Time Videos LLC v. John Doe, 1:11-cv-08334 (Arthur S.)
First Time Videos LLC v. John Doe, 1:11-cv-08335 (Arthur H.)
First Time Videos LLC v. John Doe, 1:11-cv-08336 (Christopher P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08333 (Jason S.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08337 (Jamie P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08339 (Gerald G.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08340 (Edward N.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08341 (Erik S.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08342 (Stilan P.)
Hard Drive Productions, Inc. v. John Doe, 1:11-cv-08343 (Hyung K.)
Hard Drive Productions, Inc. v. John Doe, 1:12-cv-01053-MMM-JAG (Matt R.)
Hard Drive Productions, Inc. v. John Doe, 1:12-cv-01104 (Robert R.)
Pink Lotus Entertainment, LLC v. John Doe, 1:11-cv-08338 (Klint C.)
Lightspeed Media Corporation v. Lucas S.,2012L000927 (Lucas S.)
Lightspeed Media Corporation v. Michael A., 2012L000530 (Michael A.)
Lightspeed Media Corporation v. Ronald T., 2012L000531 (Ronald T.)
Lightspeed Media Corporation v. Tom B., 2012L95 (Tom B.)

DEFENDANTS NAMED IN NEVADA
Lightspeed Media Corporation v. Adam G., CI12-2625 (Adam G.)

DEFENDANTS NAMED IN TEXAS
First Time Videos, LLC & AF Holdings, LLC v. John Doe, 4:12-cv-00535 (Tingwei & Chinatsu L.)
Lightspeed Media Corporation v. Austin C., C-133,846 (Austin C.)
Pacific Century International, LTD v. John Doe, 4:12-cv-00536 (Stephen C.)
Lightspeed Media Corporation v. W.T., Inc., CV2012-053230(W.T., Inc.)

In sum, as you can see, John Steele (through Prenda Law Inc. and his local counsel) are naming defendants, and one-by-one, they are hiring new counsel in a number of states to file against individuals. Now does this mean that John Steele is no longer a copyright troll? Maybe, maybe not. The point is that he is taking the “next step,” and he is forcing more and more individuals into litigation.  This is a concerning trend.

MY OPINION: Will he come after you? Quite frankly, with the tens of thousands of individuals he has sued, this small list is only a sliver of the huge pool of defendants who have been sued (NOT “NAMED”), who have been dismissed, and who are somewhere in between. The point though, is that while once upon a time John Steele did not name defendants, now he does.

On a personal note, I am saddened by writing this post, and as much as I always love to write the “we won!” articles (and THERE ARE SO MANY OF THOSE OUT THERE that don’t make it onto this blog), a defendant that calls my office needs to understand that there IS a risk that they might be named as a defendant at some point in the future. As we have said before, it is important that both current defendants AND DISMISSED DEFENDANTS should keep an eye out for Prenda Law Inc. filings in their state. The way they can do this is by going to the http://www.rfcexpress.com website, and watching what is going on in their state. Until a Prenda Law Inc. client (e.g., Hard Drive Productions, AF Holdings, First Time Videos, LLC) files against a John Doe or against a named defendant in a particular state, it is safe to assume they are not yet there and quite frankly, in my opinion, the risk of getting “named” is quite low. But then again, you need to be vigilant even after a dismissal, and for this reason, I have written this blog post.  This simply was not the case just a few months ago.

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Congratulations to the Texas Millennium TGA, Inc. defendants who (with the assistance of their Comcast ISP) will never have their information shared with Prenda Law Inc., Doug McIntyre (Prenda’s local counsel), or Millennium TGA, Inc. Essentially, you have won your case because the copyright trolls will never know who you are (without great effort).

In short, as we discussed back in our “Forum Shopping” article on 5/16, Millennium TGA, Inc. made the mistake of suing the same “John Doe” defendants in Texas as they did two weeks before in DC. This wasn’t a mistake — the judge that was assigned to their DC case (referred to as “MILLENNIUM TGA I“) — Judge Wilkins — was known to be unfriendly to copyright trolls. As soon as Prenda Law Inc. figured this out, they dismissed MILLENNIUM TGA I, and using their local attorney Doug McIntyre in Texas, they filed “MILLENNIUM TGA II” [Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)] here in the Southern District of Texas.  When the Texas judge gave the okay for Prenda to demand the names of the subscribers from their ISPs, Comcast recognized the similarities of the John Doe Defendants to the DC case just dismissed, and they refused to comply with the rubber stampped subpoena given to Millennium TGA, Inc. by the Texas judge. Millennium TGA, Inc. (through Prenda Law Inc., their attorneys) filed a lawsuit against Comcast in DC (MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150), also referred to as “MILLENNIUM III“) asking the court to force Comcast to comply with the Texas judge’s subpoena and hand over the names, addresses, and contact information for the subscribers implicated in the MILLENNIUM TGA II Texas case.

Then, after an adverse ruling by the DC court which [in its order by Judge Alan Kay, order now overturned] forced Comcast to comply with the subpoena, John Seiver (Comcast’s attorney) wrote an amazing appeal which resulted in the DC case being transferred back to Judge Wilkins — the enemy of the copyright trolls. We wrote about this in our “Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.” article on 5/29.

Now, almost one month later, I am happy to share that Judge Wilkins issued the order we have been looking for all along. In his ruling this Monday, he DENIED Millennium TGA, Inc.’s motion to compel Comcast to comply with the subpoenas (and hand out the subscribers’ information). In other words, congratulations to the Cashman Law Firm, PLLC clients who have been entangled in this mess — your plaintiff attorneys Prenda Law Inc. and their local counsel Doug McIntyre will likely NEVER know who you are. In addition, congratulations on your victory in your Texas case, because without knowing who you are, they cannot name you as a defendant, and they cannot move forward against you. Score!

Food For Thought Moving Forward:
Okay, here is the silver lining. For those of you who do not have Comcast as your ISP, your Texas case is moving forward as usual. Similarly, for those of you who do not live in Texas, Judge Wilkins has ordered that Comcast turn over to Prenda Law Inc. ONLY the CITY AND STATE which is linked to your accused IP address. That way, if Prenda wishes to file a follow-up lawsuit against you, they can sue you in your home state’s federal court… or not. Here is my thinking.

Remember the “two-strike rule” in the Federal Rules of Civil Procedure (“FRCP”) Rule 41?? — a dismissal in the Texas court in a number of John Does’ cases would be the second dismissal [which is deemed to be “on the merits.”] This could preclude your copyright trolls from filing suit against you a THIRD time in your home state’s federal court. See DieTrollDie’s “Two Strikes and You’re “Out!” – FRCP 41 & Copyright Trolls” article, and for more discussion on the topic, see Sophisticated Jane Doe’s “A Trolling Lawsuit Ends With Style” article here.

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It is always nice when one judge reaches into another judge’s docket and removes a case from his docket.

While I cannot tell if this is exactly what happened here, all I can say is that Comcast essentially just won their “forum shopping” case against Prenda Law Inc. relating to their Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case in the Southern District of Texas (a.k.a. “MILLENNIUM II”). BUT before you go off celebrating, Comcast is STILL under an obligation to hand out your information. Watch out!

To recap, if you remember from my “Forum Shopping” article on 5/16, Millennium TGA, Inc. sued 939 John Doe Defendants in DC (“MILLENNIUM TGA I”). When they learned that Judge Robert Wilkins (who killed a prolific bittorrent case) was assigned to the “MILLENNIUM TGA I” case in DC, the Prenda Law Inc. attorneys for Millennium TGA, Inc. dismissed the case and then re-filed it in the Southern District of Texas (Case No. 4:11-cv-04501) (“MILLENNIUM TGA II”) suing essentially the same John Doe Defendants as they did in the “MILLENNIUM TGA I” case in DC which they voluntarily dismissed when they learned that Judge Robert Wilkins was the judge assigned to that case.  The Texas judge rubber-stamped their request to serve the ISPs with subpoenas to obtain the contact information of the 939 John Doe Defendants, and Prenda Law Inc. sent out the subpoenas to the ISPs. Comcast (one of the ISPs) saw the obvious forum shopping (actually, “judge shopping”) issue (among others) and refused to comply with the subpoenas. Prenda Law Inc. sued Comcast in DC (what I called “MILLENNIUM TGA III” in my 5/16 article).

In the MILLENNIUM TGA III case in DC (which is essentially Prenda Law Inc. suing Comcast in order to force them to comply), Magistrate Judge Kay ruled against Comcast telling them that they must comply. Comcast appealed, BUT THE JUDGE’S ORDER FORCING COMCAST TO COMPLY IS STILL VALID AND IS STILL IN EFFECT! So what exactly is going on?? What happened today??

On 3/26, Comcast noticed that Prenda Law Inc. violated the court’s “judge shopping” rules (LCvR 40.5(a)(4)) by not reporting that its new case [assigned to Magistrate Judge Kay] was substantially related to the “MILLENNIUM TGA I” case that it voluntarily dismissed when it was before Judge Wilkins.

According to the DC local rules, to prevent contrary rulings by different judges for the same issues, if two lawsuits are substantially related (here, they are essentially identical), all subsequently filed cases get assigned to the original judge.

Knowing this, on 3/26, Comcast filed a “Request For Judge Reassignment” which was ignored until this morning.

As of this morning, District Judge Ellen Segal Huvelle took the case away from Magistrate Judge Kay and reassigned it to Judge Robert Wilkins — the judge it should have gone to originally. Woohoo! Comcast’s victory is palatable at this point, because we can almost predict with certainty that he will rule in Comcast’s favor and will allow them NOT to comply with the subpoenas in the Texas MILLENNIUM TGA II case.

The problem is that all you see on the docket is a granting of the 3/26 motion for reassignment. Comcast appealed Magistrate Judge Kay’s terrible ruling against it, and Prenda Law Inc. filed a response to which Comcast responded to, but THERE WAS NEVER A RULING ON THEIR APPEAL which means that JUDGE KAY’S ORDER IS STILL IN EFFECT! COMCAST IS STILL UNDER AN OBLIGATION TO COMPLY WITH THE SUBPOENAS!

So in short, I have no doubt that Judge Wilkins will side with Comcast. However, I just don’t know if he has enough time to stop what he is doing (judges don’t only spend their days only reading these pornography-based bittorrent cases) and write an order 1) granting Comcast’s appeal and overturning Magistrate Judge Kay’s order [which is still in effect], and 2) granting Comcast’s motion for an extension of time to comply with the subpoena (which for many people, the deadline is today).

So while Comcast has essentially won the battle, they have not yet won the war. Comcast is still under the obligation to comply with the subpoenas.

MY OPINION:
…On a personal note, I feel that it is important that Comcast subscribers take note of the CONFLICT OF INTEREST that is apparent even in cases such as this one.  Comcast has been blindly complying with Prenda Law Inc.’s subpoena requests for almost TWO YEARS now.  They have opened up their own “Subpoena Compliance” division and have hired new staff (twelve new full-time employees, if my memory serves me correct) just to comply with these subpoena requests. They have entered into private agreements where Prenda pays them a certain sum of money for each IP address lookup (~$45 per IP address, give or take), and thus COMCAST RECEIVES A FINANCIAL BENEFIT FROM COMPLYING WITH THE SUBPOENAS.  On top of that, while I have spoken to John Seiver and I believe he is a very skilled attorney (remember the work he did in bringing down the Digiprotect case almost two years ago?), I cannot help but to be suspicious that this whole lawsuit is a PUBLIC RELATIONS STUNT solely to boost the image of Comcast.  After all, I must ask you — where were they until now? Have they filed ONE motion to quash on behalf of their subscribers? Why not? After all, with all the thousands of failed motions to quash filings attempted by their subscribers, Comcast could have SUCCESSFULLY filed motions to quash on behalf of its subscribers [they had standing in each case to object, and judges were dumbfounded why they never got involved], but they never did. Why not?

I also would like to mention that Comcast was one of the first ISPs to sign on to the MPAA/RIAA’s “six strikes” program (now on hold) which will no doubt be wreaking havoc on their subscribers in the near future.  So while I applaud John Seiver and Comcast for fighting and [what will likely be] WINNING the case against Millennium TGA, Inc. and Prenda Law Inc., I still need to ask myself on behalf of my clients, where were they until now? And, “will they still “accidentally” comply and collect their fee?” I would like to remind you that this has happened before.

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As a response to the “You Have Been Shopped” article written by DieTrollDie on forum shopping, I do have some insight to add to this. In short, there are not two Millennium TGA lawsuits in this forum shopping scandal, but three (if you are counting the “motion to compel” lawsuit in DC which is the key to understanding exactly what is going on — this is the missing link which provides the insight I am sharing).

MILLENNIUM TGA I: In short, on 12/7/2012, Millennium TGA v. Does 1-939 (Case No. 1:11-cv-02176) (hereinafter, “Millennium TGA I”) was filed in DC. It was assigned to Judge Robert Wilkins, the DC judge who killed the “Expendables” bittorrent lawsuit — this was the Nu Image, Inc. v. Does 1-23,799 lawsuit by Dunlap Grubb & Weaver, PLLC which quickly expanded from 6,500 into 23,222 John Doe Defendants before the judge shut down the case. It took Prenda Law Inc. a week to figure out that their judge was THE Judge Wilkins, and they quickly and voluntarily dismissed the case.

MILLENNIUM TGA II: Four days later, Prenda Law Inc. used their local counsel Doug McIntyre (the same local counsel who was almost fired because he took on the West Coast Productions, Inc. client [remember them in DC and in W.VA with their attorney Kenneth Ford who is now in jail?] in his West Coast Productions, Inc. v. Does 1-351 (Case No. 4:12-cv-00504) case which he filed without telling Prenda Law Inc. about it) and on 12/20/2012, Doug McIntyre filed the Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case here in the U.S. District Court for the Southern District of Texas. This case involves pretty much identical parties, facts and claims as were alleged in the MILLENNIUM TGA I case in DC. I suppose they thought nobody would notice their overt forum shopping, especially since they changed the name of their lawsuit.

Everything went smoothly for the plaintiff attorneys in the MILLENNIUM TGA II case in Texas …until Prenda Law Inc. served a subpoena on Comcast, who said “no.”

This is where the story gets interesting. On 2/29/2012, Comcast objected to the subpoena by stating that 1) the court lacked personal jurisdiction over most of the IP addresses listed in the subpoena; 2) there were serious joinder issues in the lawsuit; and 3) the plaintiff was engaging in “a blatant attempt to FORUM SHOP” since they already dismissed MILLENNIUM TGA I to avoid being in front of Judge Wilkins in DC.

MILLENNIUM TGA III: As a result, Prenda Law Inc. (Millennium TGA, Inc.’s attorneys) filed a lawsuit against Comcast (it was actually a “motion to compel”) in the MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150) case in DC.

It was in this lawsuit that John Steele “surfaced” from pretending (think, “Prenda”) that he was not associated with Prenda Law Inc. since Paul Duffy allegedly took over the firm. It is also my understanding that Prenda Law Inc. didn’t realize that John Seiver was the attorney behind the scenes on this case, and what they might not have known was that John Seiver has wreaked havoc on bittorrent cases as long as two years ago with the Digiprotect cases in New York. Perhaps even Prenda Law Inc.’s predecessor firm Steele|Hansmeier, PLLC was not yet in existence when this happened, and John Steele was still running his divorce practice a la the Steele Law Firm, PLLC. Either way, I suspect that they filed the motion to compel Comcast to comply with the subpoena in order to bully them, and they didn’t realize that Comcast (through John Seiver) would fight back.

Now advancing forward a bit on the timeline, Magistrate Judge Alan Kay ignored pretty much every point that Comcast brought up and he issued an order on 4/18/2012 ordering Comcast to comply with the subpoena for the MILLENNIUM TGA II Texas case. They were ordered to reveal 351 of the subscriber identities to Prenda Law Inc. This is, however, where it gets interesting.

John Seiver, obviously realizing that Magistrate Judge Kay made a dumb ruling, essentially called him a moron in appealing his order. As an attorney, I would hold my tongue myself here in writing this article, especially because I am interested in seeing John Seiver and Comcast prevail, and I know that sometimes a judge can rule his court by ego rather than adhering to the law, but Magistrate Judge Kay’s ruling against Comcast was so dumb I could not contain myself.

In short, according to Comcast’s appeal, 1) the judge erred by failing to consider any of the legitimate defenses that Comcast raised on behalf of its subscribers. 2) The judge erred by failing to address the fundamental issue of whether any of the unnamed Does would be subject to personal jurisdiction (either in Texas, or in DC per the motion to compel). 3) The judge erred by failing to address the possible misjoinder of the one John Doe defendant (and the many co-conspirators) in the Texas case. 4) The judge erred by failing to realize that “conspiracy” is not a sufficient crime to allow massive discovery on the John Doe Defendants, and 5) Magistrate Judge Kay was not the proper judge to accept this case — according to DC’s own local rules (Local Rule 40.5), the case should have been immediately reassigned to Judge Robert Wilkins, the judge who was previously assigned to the MILLENNIUM TGA I case, since MILLENNIUM TGA I and MILLENNIUM TGA II had identical claims. As of this evening, I am still waiting to hear a ruling on this appeal.

Now for those of you still in Prenda Law Inc.’s MILLENNIUM TGA II (Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)) case here in the U.S. District Court for the Southern District of Texas, if you are a Comcast subscriber, as you can see, there are unresolved questions in the MILLENNIUM TGA III DC case, and your status is uncertain. Thus, my contribution to the FORUM SHOPPING article by DieTrollDie today is that the DC MILLENNIUM TGA III case holds the key to understanding what is currently going on in the MILLENNIUM TGA II case here in Texas. Now as for everyone else (e.g., non-Comcast clients who are in the MILLENNIUM TGA II Texas case), understand now that the MILLENNIUM TGA III [motion to compel] DC case directly impacts your Texas case. Obviously this is something we are watching for our clients.

If you are interested in reading this entertaining appeal by Comcast in order to understand the entire story and its implications, I have attached a copy of Comcast’s motion below.

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The bittorrent cases are speeding up, both in number of cases filed, and in the issues relating to the cases. Judges are smartening up to what is going on, and I am seeing the smaller “Does 1-23” cases ripped to shreds in the courts. But, because they are so small, the activities in each case are falling below the radar.

These smaller cases are now filed in the multiple courts across the country — the correct courts — with the John Doe Defendants often living in the states in which they are sued. Thus, there are no more motion to quash issues, and there are no more “wrong jurisdiction” arguments.

However, while NEARLY ALL the smaller lawsuits still have “improper joinder” issues (meaning, suing Does together in the same lawsuit who did not participate in the same swarm; thus, they did not take part in the same transaction at the same time), THE CASES ARE SIMPLY NOT GOING TO TRIAL and thus defendants are not getting the chance to contest improper joinder.

The problem with these smaller cases is that 1) the settlement amounts are elevated, and 2) the risk of being named as a defendant goes through the roof because all that is required to name defendants in these smaller cases is that the plaintiff merely needs to amend the complaint against a particular Doe (thus the case will change from Patrick Collins, Inc. v. Does 1-30 to Patrick Collins v. “Elliot Hendel” and Does 1-29 [this name is merely fictitious]), and then someone comes knocking at Elliot’s home and serves him a copy of the complaint. At that point if he has not already done so [and he should have hired an attorney immediately upon having notice from his ISP that he was one of the Does in this case], he has to hire an attorney to respond within 20 days with his answer and his counterclaims, or he will default (which means the court can enter a default judgment against him for the full $150,000).

However, the BIG SECRET is that for the most part, these defendants do NOT get named as defendants, and they remain anonymous as far as what is visible from the court’s eyes. Instead, the plaintiff attorneys scare the b’jeebies out of them and cause them in some cases to sign [in many cases] an “I’m guilty, I’m sorry, I’ll never do it again” settlement agreement. The end result is that they end up paying significantly more than they would have if they merely called an attorney and had that attorney negotiate on their behalf. To make matters worse, defendants do not realize that there are really three-tiers of settlement prices (not two) — 1) the plaintiff attorney’s asking price (the “pay us $X by this date or else we’ll name you as a defendant in this case” amount), 2) defendant-negotiated price, and 3) attorney-negotiated price.

When the defendant tries to negotiate his settlement on his own, the likelihood is that he will probably say something incriminating about his case. (For example, not knowing the case law, he may say, “it wasn’t me; it was probably my son — he uses the internet all the time; I keep telling him not to watch that porn,” or “I let my neighbor / son / guest / roommate use my internet,” or “I didn’t realize it was illegal to download — I thought it was only illegal to upload!” etc.) The result is that the plaintiff says, “thank you for telling me you are guilty; the offer is now off the table and I will see you in court <click>,” only to call back shortly afterwards and, in the graces of his heart, he will offer a new settlement amount which is nearly double the asking price of the original settlement amount.

It is not only important to have an attorney negotiate your settlement amount 1) because he can, and 2) he won’t incriminate you while you would likely incriminate yourself, but also, the attorney knows the case law [which is not so obvious], and he knows what to put into a settlement agreement so that the settling defendant does not later get sued for the same claim, attorney fees, etc. It kills me to see so many people turn around and try to settle on their own without reading what they are agreeing to. What burns me more is when attorneys don’t read the contracts they have their clients agree to.

…In short, the plaintiff attorney mops up the floor with the defendants, and many of the defendants (if not most of them) turn over and lay dead while they capitulate and settle their cases. Had they lawyered-up, they would have known how to protect themselves. Better yet, their lawyer would have stepped in their shoes and the plaintiff attorneys would not have even been allowed to contact the defendants in the first place. No letters, no scare tactics; no threats.

Everything being said, one thing that most don’t even bother to find out is who exactly their plaintiff attorneys are. In more cases than not, the plaintiff attorney is merely a guy in a room with a laptop and a phone. Sometimes there is a second lawyer guy in the room making phone calls scaring the defendants into settling — a two-man show. …Do you really think this one or two-man show actually has the ability to sue more than just a few defendants, and if you defendants lawyered-up, do you think the plaintiff attorneys would have the time to name each and every one of you? AND if they named each and every one of you (which is literally impossible because to serve each one of you with service of process would be nearly impossible to track and there are bound to be significant errors), do you think they would have time to respond to each and every one our discovery requests?

As your attorney, when I defend you, I have a duty to properly protect your interests. That means that us attorneys must establish evidence that calls into question their so-called experts’ methods in collecting IP addresses (see here for just a taste). We need to call into question their methods of suing multiple Does in one lawsuit. We need to fight them procedurally with motions to dismiss, motions for summary judgement, and in some cases, motions for sanctions.

Do you think that the one-man show attorney and their underlying plaintiff (too often, the porn production company) can handle the hours of deposition time that EACH OF YOU DEFENDANT would be entitled to? What about their so-called experts? Do you think they have the time to answer all our in-person depositions for each defendant? What about our interrogatories? What about our other discovery motions? Do you really think the one-man show — the attorney guy in the room with a laptop — has the time to spend going after each one of you when he can instead go after the unrepresented defendants who roll over and settle their cases?

To make these cases merely insulting, these plaintiff attorneys have been hiring no-name local-counsel attorneys to file their cases on their behalf (no disrespect to any of them; I understand they are doing it solely so that they can make a commission off of those who settle). As far as I understand, the local counsel often know absolutely NOTHING about these cases, but they talk a big game and then sheepishly refer you to someone else — an “in-house” negotiator, or the attorney behind the curtain — so that they can “close” the deal for them and scare you into settling. If you actually had us attorneys defend your cases rather than merely have us settle them, do you really think the BIG-8 ATTORNEYS (listed below) would have the time and the patience to babysit these local counsel when they ask for assistance after we file our own motions for discovery?

Thus, a client in these smaller Does 1-20 (or 1-50, or 1-80) cases does not need to settle, especially if they do not live in the jurisdiction in which they are sued. This is true regardless of whether the plaintiff attorney is Dunlap Grubb & Weaver (Nicholas Kurtz or Ellis Bennett), Steele Hansmeier (John Steele or Mark Lutz), Gill Sperlein, Ira Siegel, Keith Lipscomb, or even Marc Randazza.

We do know how to defend these smaller cases.

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