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Archive for the ‘Judge Forrest’ Category

This post is not going to be one of your favorites, because not all my posts are going to similar to my “Malibu Media Goes Down in Flames” article (or the many other positive ones I have written to date).

In short, when a judge consolidates a copyright troll’s set of cases, that is generally a really good thing. In the “olden days” (meaning, two years ago), lawsuits used to have literally THOUSANDS of John Doe Defendants in each case. The problem was that when those monster cases would fall, they would make a huge thump sound and thousands of defendants would go free with one judge’s order.

As we predicted many months ago, the newer lawsuits would be smaller with fewer John Doe Defendants in each case. That way, if a “Malibu Media, LLC v. Does 1-10” case went bust, there would be twenty other cases still standing. Plaintiff attorneys quickly figured this out and started to sue just a few defendants in each lawsuit.

Similarly, in the older cases, plaintiffs would clump together defendants from all over the country and they would sue them in the WRONG STATE. Obviously the rule the copyright trolls overlooked at the time is that “in order to sue a defendant, you need to sue a defendant where the DEFENDANT resides,” not in the court which is closest to the plaintiff attorney’s Chicago office. This was the issue of PERSONAL JURISDICTION (or more accurately, “improper jurisdiction”), where the plaintiffs would sue defendants in the wrong courts. However, more and more, we see with the Malibu Media, LLC bittorrent cases and the copyright infringement cases from other plaintiff attorneys (e.g., Jason Kotzker, Mike Meier, etc.), they are purposefully suing defendants in the CORRECT STATES so jurisdiction in most cases IS proper.

In mostly every bittorrent case, there is still the issue of JOINDER which we have written about too many times to list. In short, in order to properly join together MULTIPLE DEFENDANTS in the same lawsuits, those defendants needed to have done the SAME CRIME AT THE SAME TIME. The actual legal terminology is the “same transaction or occurrence.” In the bittorrent world, that essentially means that the bittorrent users (now John Doe defendants) needed to have taken part in downloading and uploading copyrighted Malibu Media’s movies in the same bittorrent SWARM. While this argument of improper joinder does not become relevant until a defendant is “named” as a defendant (meaning, served with paperwork which means they are no longer a John Doe, but their real name has been listed in an “amended complaint” in the case’s docket), it is still a problem with pretty much EVERY bittorrent case today (with exception of the various lawsuits by Kevin Harrison and Paul Lesko in his 4Twenty lawsuits where they sometimes sue the swarm rather than specific John Doe Defendants). However, it is not relevant to this discussion, but it was still worth noting.

The problem many copyright trolls are now facing in the courts is that NOW THAT THEY HAVE CHANGED THEIR LAWSUITS TO SUE SMALLER NUMBERS OF DEFENDANTS, they usually “forget” to inform the court of RELATED LAWSUITS that they have also filed against other bittorrent users (this violates a number of federal courts’ local rules which could jeopardize their many cases). The result of the plaintiff attorneys not telling the courts of the HUGE NUMBER OF LAWSUITS IN EACH COURT (you can look them up on http://www.rfcexpress.com just to see a few examples) is that each case gets assigned to a different judge (copyright trolls love this and actually rely on this when forum shopping), and each judge interprets the law as he understands it. In short, not linking the case together results in some bittorrent cases being dismissed by some judges in one court, and in some bittorrent cases (against other John Doe Defendants) being allowed to proceed by other judges in that same court. In short, not informing the court of related lawsuits results in INCONSISTENT RULINGS by different judges in the same district court. This is called a SPLIT in the court’s decisions (even though the term “split” usually indicates judges from one jurisdiction (e.g., Southern District of New York) ruling one way, and judges from another jurisdiction (e.g., Central District of California) ruling another way.

The wonderful result we have seen from the torrent of lawsuits that have flooded the dockets of many federal courts across the U.S. is that judges have begun to CONSOLIDATE CASES and give one ruling that affects ALL OF THEM. In other words, no more inconsistent rulings.

As exciting as this might be, for a while, we thought that when a judge consolidates cases, it is for the purpose of shutting them all down together (“the bigger they are, the harder they fall”). This has happened to a few attorneys’ cases already, and A CONSOLIDATION USED TO MEAN THE DEATH OF ALL THAT PLAINTIFF ATTORNEYS’ CASES. However, this is no longer the case.

As we learned in the Southern District of New York when Judge Forrest clumped together all of Mike Meier’s bittorrent cases, we thought this was the end of them once and for all. WRONG. Now, months later, we understand now that Judge Forrest consolidated the cases merely so that she can MANAGE THEM TO AVOID INCONSISTENT RULINGS. To our shock and horror, Judge Forrest had no interest in killing Meier’s cases.

Now comes Leemore Kushner‘s new bittorrent cases in the Central District of California, all from the Malibu Media, LLC (a.k.a. the “X-Art.com”) plaintiff. Following the copyright troll strategies of Jason Kotzker, Chris Fiore, Adam Silverstein, and Mike Meier, Leemore Kushner (see http://www.kushnerlawgroup.com [great website, by the way; almost as good as Kevin Harrison's website]) filed a whole bunch of cases in the California Central District Court. However, she failed to tell the court that all of her cases were all related.

As soon as Judge Klausner took over the case, he noticed Malibu Media, LLC’s other cases, most of them filed by Leemore Kushner (and three by Adam Silverstein):

CASES FILED BY LEEMORE KUSHNER OF KUSHNER LAW GROUP IN THE CENTRAL DISTRICT OF CALIFORNIA
Malibu Media LLC v. John Does (Case No. 8:12-cv-00647)
Malibu Media LLC v. John Does (Case No. 8:12-cv-00649)
Malibu Media LLC v. John Does (Case No. 8:12-cv-00650)
Malibu Media LLC v. John Does (Case No. 8:12-cv-00651)
Malibu Media LLC v. John Does (Case No. 8:12-cv-00652)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03614)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03615)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03617)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03619)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03620)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03621)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03622)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03623)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04649)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04650)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04651)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04652)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04653)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04654)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04656)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04657)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04658)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04660)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04661)
Malibu Media LLC v. John Does (Case No. 2:12-cv-04662)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-05592)
Malibu Media LLC v. John Does (Case No. 2:12-cv-05593)
Malibu Media LLC v. John Does (Case No. 2:12-cv-05594)
Malibu Media LLC v. John Does (Case No. 2:12-cv-05595), and

CASES FILED BY ADAM M. SILVERSTEIN OF CAVALLUZZI & CALLALLUZZI IN THE CENTRAL DISTRICT OF CALIFORNIA
Malibu Media LLC v. John Does (Case No. 2:12-cv-01642)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01647)
Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01675)

Seeing all of these cases, no doubt the issues of copyright trolling, extortion, clogging up the court’s docket, and whether Kushner actually intends to take these defendants to trial or not was on his mind… or was it? I’m not so sure. Judge Klausner consolidated his cases with an ORDER TO SHOW CAUSE why these cases should not be dismissed for… LACK OF PERSONAL JURISDICTION??

In short, here are a large number of cases, and if Judge Klausner was against these copyright trolling / extortion-based lawsuits, he would have asked Leemore Kushner to explain to the court why these cases should not be dismissed for any of the other INHERENT FLAWS in these bittorrent cases, but NOT PERSONAL JURISDICTION. The reason I say this is because IF THERE IS ONE THING MALIBU MEDIA, LLC GOT RIGHT IN THEIR LAWSUITS,IT IS PERSONAL JURISDICTION. You could be damn sure that is Leemore Kushner sued someone in California, then THEY LIVE IN CALIFORNIA. If Jason Kotzker sued someone in Colorado, then THEY LIVE IN COLORADO. The plaintiff attorneys have too much common sense from the mistakes of the past two years to sue people in the wrong jurisdiction.

For this reason, I am sad to say that I am not jumping up and down for joy about the fact that all these cases were consolidated because I do not think they are going bust just yet. Anyone that speaks to me knows that I believe these cases have some really bad flaws which, if taken to trial, would cause Malibu Media, LLC to LOSE EVERY TIME. However, I suspect Malibu Media knows this as well which is why the game for them is to 1) sue John Doe Defendants, 2) settle as many as they can, 3) “name” those who do not settle, 4) settle those who are named for a higher amount, 5) go for a default judgement ($750 + ~$2K attorney fees, or $30K + attorney fees, but I’ve never seen a $150K default judgement), or dismiss those who are named, 6) re-file individually against those who did not settle, 7) settle with higher stakes, and 8) rinse and repeat.

In short, I’m not so optimistic about this one, and neither should you be. Until we see the words “improper joinder,” “scheme,” or “extortion” come out of this judge’s mouth, it looks to me as if we have a troll-friendly judge who just wants to manage these cases.

You can see his order here.

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It is very easy to put up a banner claiming “MISSION ACCOMPLISHED — NO MORE BITTORRENT CASES IN SOUTHERN DISTRICT OF NEW YORK,” but reality is not that simple. A judge can give a ruling, and it can be a darned good ruling which is binding on all other judges in that federal district (similarly, that ruling is persuasive for judges in other federal districts). One such case is the case written up by Sophisticated Jane Doe in her “The Domino Effect: Trolls are not welcome in the Southern District of New York anymore” article posted just moments ago. I do not need to re-write this up — she did a wonderful job, and there is no reason to duplicate her efforts.

That being said, this case does merit some discussion. The name of the case is Digital Sins, Inc., v. John Does 1-245 (Case No. 1:11-cv-08170, or 11 Civ. 8170) [misspelled], filed in the U.S. District Court for the SOUTHERN DISTRICT of New York (remember our blog post about forum shopping there?). I am happy to share that the case is now SEVERED AND DISMISSED. Obviously, congratulations to the Cashman Law Firm, PLLC clients who were part of that case. This ruling is WONDERFUL for you.

As far as I am concerned, this ruling was the order I was waiting for back in March when I reported that all of copyright troll Mike Meier’s New York cases were consolidated by Judge Forrest. Similarly, you’ll see what I thought would happen in my “New York Judge consolidates and freezes SMALLER BITTORRENT CASES for plaintiff attorney” article earlier that month. Well in short, my opinion with hindsight was that all this was a dud, and Judge Forrest merely consolidated the cases to rein in Mike Meier so that she can control him and his cases so that they all had uniform outcomes. This was obviously a step in the right direction, but it did not dispose of the cases in their entirety. Perhaps because Judge Forrest had experience with copyright cases in the past, she thought she should be the one to preside over them. However, in my opinion, she just made them more orderly; she didn’t rule on the underlying issues plaguing each of Mike Meier’s cases.

Here comes Judge Colleen McMahon of the same Southern District as Judge Forrest, and she (like Judge Forrest) has my respect. In her ruling on Tuesday, she took the opportunity to take a John Doe ruling, and turn it into NEW LAW FOR NEW YORK COURTS (obviously I am referring to the federal courts). What impressed me was that not only was she aware of Judge Forrest’s activities, she changed the law by dissenting with them.

“Judges Forrest and Nathan, have decided to allow these actions to go forward on a theory that permissive joinder was proper.  I most respectfully disagree with their conclusion.” (p.4)

Further, she ruled that if Mike Meier wanted to sue these 244 defendants, he may do so in separate lawsuits, AND HE MUST PAY THE $350 FILING FEE FOR EACH LAWSUIT (that’s $85,400 in filing fees that Digital Sin, Inc. will have to pay if they want to go after the dismissed defendants).

“They are dismissed because the plaintiff has not paid the filing fee that is statutorily required to bring these 244 separate lawsuits.” (p.4)

What made this case blogworthy (and you’ll notice, I rarely post about the run-of-the-mill dismissals that happen every day in various jurisdictions when their rulings teach nothing new) was that Judge McMahon suggested TWO STRATEGIES to John Doe Defendants that she believes would successfully refute the plaintiff attorney’s geolocation evidence as proof that the court has personal jurisdiction over the accused IP addresses.

Firstly, she suggests that the John Doe defendants not living in the jurisdictional confines of the court simply file a SWORN DECLARATION that they live somewhere else.

“John Doe 148 could have overcome [the geolocation data evidence provided by the plaintiff] by averring [e.g., in a sworn decaration] that he was a citizen and resident of some state other than New York — even New Jersey or Connecticut, portions of which are located within the geographic area that is covered by the geolocation data.” (emphasis added, p.5)

Secondly, she said that since plaintiff attorneys are getting the personal jurisdiction right (e.g., filing lawsuits against Californians in California, against Texans in Texas, etc.), defendants could start asserting the “WRONG VENUE” argument (essentially saying, “Court, yes, I live in New York.  But I was sued in Long Island and I live in Buffalo.  It would be an extreme hardship for me to travel down to Long Island every time I need to show up for a hearing there to defend my case.”).  The actual verbiage suggested by the Court is that “…plaintiff has failed to plead facts rom which a reasonable trier of fact could conclude that this Court has personal jurisdiction over this John Doe, or that venue is properly laid in this district.”  (emphasis added).

Next, this ruling is VERY EXCITING because it puts handcuffs on Mike Meier should he wish to file against any of the severed and dismissed defendants in a follow-up case.  Those rules are:

1) When an ISP complies with a subpoena request, it may not share the telephone number or e-mail address of the subscriber with the plaintiff attorney.

2) Assuming the ISP does not file a motion to quash (it obviously may AND SHOULD do so on behalf of its subscribers [my opinion]), the ISP shall share the subscriber’s information WITH THE COURT ONLY (not directly to the plaintiff as is usually done), and the court will disclose the information to the plaintiff attorney.  (I’m not sure the benefit of this — they still get the contact information of the John Doe Defendants this way).

3) The plaintiff may use the information disclosed ONLY FOR THE PURPOSE OF LITIGATING THAT CASE (so the plaintiff may no longer use the threat of future litigation if they do not immediately settle to extort a settlement.  This was a tactic used by many plaintiff attorneys (most notoriously, Prenda Law Inc. who admitted that they dismissed the case so that they can go after the John Doe Defendants [extorting settlements] without the court’s involvement).

Lastly — and her timing is quite interesting as we just finished writing about forum shopping in bittorrent cases — she warned Mike Meier not to engage in “judge shopping.”

“Lest plaintiff’s counsel think he can simply put cases against the severed and dismissed John Doe defendants into the wheel for assignment to yet another judge, I remind him of Local Civil Rule 1.6(a) [which requires the plaintiff attorney to bring the existence of potentially related cases to the attention of the Court].” 

For your reading pleasure, I have pasted a copy of the order below.  For my own opinion on the topics discussed by the judge, I have pasted them below the judge’s order.

MY OPINION:  There is more here that I did not write about, namely that the judge believes that all the bittorrent cases currently being held by Judge Forrest and Judge Nathan should be assigned over to her so that she can dispose of them once and for all.  She also went into other judge’s rulings which duplicate content in other articles on the blog.  However, once again, we have another wonderful ruling.  However, moving forward, perhaps I am a bit jaded, but I don’t foresee Judge Forrest or Judge Nathan tomorrow assigning over all their bittorrent cases to this judge.  There is now a disagreement in the New York courts (as there are in many jurisdictions) as to how to handle these cases.  I would love to jump up and down, wave a banner and declare “MISSION ACCOMPLISHED — NO MORE BITTORRENT CASES IN SOUTHERN DISTRICT OF NEW YORK,” but quite frankly this is not reality.

More likely than not, plaintiff attorneys such as Mike Meier, Jason Kotzker, and any other copyright troll who wants to file in New York will continue to file there.  As you can see in my forum shopping article (which should more properly be called “Judge Shopping”), an attorney can in ONE DAY file  9 SEPARATE CASES and receive 7 SEPARATE JUDGES, as was the case with Kotzker’s recent filings.

In addition, while the SWORN DECLARATION argument and the VENUE arguments are both easy solutions to disprove the plaintiff’s prima facia case for personal jurisdiction (meaning, the bare minimum a court will require in order to accept the fact that it has personal jurisdiction over the defendants in the case), a John Doe Defendant hoping to hide his identity from the plaintiff attorney and quash a subpoena should not be excited by these solutions.  1) For the sworn declaration, they’ll necessarily be giving up their true location (they cannot lie that they live in Connecticut when they live in California), and we all know that Mike Meier is only ONE local attorney to a larger IP monetization group (“The Copyright Enforcement Group”) which has other attorneys in other states, and who continues to recruit new hungry would-be copyright trolls.  So even if they succeed in getting their case dismissed here, guess who will be filing against them in their home state’s federal court?  2) A John Doe Defendant who asserts the “correct state, wrong venue” argue just made a big blunder — he admitted that personal jurisdiction is proper in that state.  Rules for venue are based on a number of factors, NOT ONLY WHERE THE DEFENDANT LIVES.  Similarly, no doubt the plaintiff will respond in a wrongful venue argument in a motion to quash that “John Doe filed this motion to quash asserting wrongful venue (which by the way is not a valid ground to quash a subpoena; jurisdiction IS), but he is not a party to the action [yet] and thus he has no standing to file this motion to quash.”  Remember this?  Lastly and realistically, the proper time a defendant CAN AND SHOULD use this wrongful venue argument is in his ANSWER (which means he was already NAMED as a defendant in the case).  Too late.  There are better issues to kill a case at this point than complaining that the court is too much of a drive.

[DISCLAIMER: I've given many opinions here which is not to be taken as legal advice.  Each defendant has different needs and different circumstances, and for this reason, the legal advice I give for one of my clients may not be appropriate (or may even be harmful) to another client who's circumstances are different.  Also, obviously no attorney-client relationship is formed until you sign a retainer and become a client.]

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*** UPDATE (3/13, 11:45am CST): I might need to backpedal a bit here. I received word from an attorney who had ears in yesterday’s hearing that Judge Forrest is not going to bust these cases as I thought she would. The reason for the consolidations is to treat them as one larger case so that the rulings in each of the cases will be consistent throughout his many cases. I am editing yesterday’s blog posts with cross-outs (example) and underlines (example) so you can see where I am changing the tone of the blog post from overly optimistic to slightly somber. I will obviously post about the judge’s order [UPDATE 3/14: HERE - see comments below for commentary] once it becomes available. ***

*** UPDATE (3/12): As we initially discussed last week, *new cases* have been handed over to Judge Forrest so that she can adjudicate the smaller bittorrent cases together. I have added them to the list below. They are not yet listed as part of the “consolidated” case list (in Case No. 1:11-cv-09705), but if you look at the case dockets for each case, the notations that Judge Forrest is now handling them should tip you off that these cases too are now in trouble are now under her scrutiny. ***

New Cases Now Handled By Judge Forrest:

Combat Zone Corp. v. Does 1-63 (Case No. 1:11-cv-09688)
Digital Sin, Inc. v. Does 1 – 179 (Case No. 1:11-cv-08172)
Media Products, Inc. v. Does 1-55 (Case No. 1:11-cv-09550)
Media Products, Inc. v. Does 1-36 (Case No. 1:12-cv-00129)
Media Products, Inc. v. Does 1-142 (Case No. 1:12-cv-01099)
Next Phase Distribution, Inc. v. Does 1-138 (Case No. 1:11-cv-09706)
Patrick Collins, Inc. v. Does 1-115 (Case No. 1:11-cv-09705)
SBO Pictures, Inc. v. Does 1-92 (Case No. 1:11-cv-07999)
SBO Pictures, Inc. v. Does 1-154 (Case No. 1:12-cv-01169)
Third Degree Films, Inc. v. Does 1-216 (Case No. 1:11-cv-09618)
Third Degree Films, Inc. v. Does 1-217 (Case No. 1:11-cv-07564)
Zero Tolerance Entertainment, Inc. v. Does 1-56 (Case No. 1:11-cv-09703)

This is obviously relatively good news for the roughly 1,200+ John Doe Defendants who can now breathe a bit more easily knowing that their plaintiff attorney’s cases are in trouble because 1) we now know that the judge is VERY aware of the MANY cases pending against the many Doe Defendants, and 2) rulings across the board will now be consistent — you will no longer have one judge letting one bittorrent case move forward, and another judge dismissing his bittorrent case for lack of joinder or improper jurisdiction. You can read about the judge’s order regarding the original consolidated cases in our “New York Judge consolidates and freezes SMALLER BITTORRENT CASES for plaintiff attorney” article. No doubt similar orders will in time be written for these additional cases.

On a related note, Judge Forrest is not the only New York District Judge who has figured out what is going on with these copyright infringement (“copyright troll”) cases.

Judge Colleen McMahon (no doubt these judges talk to each other about their cases) has issued an order in two cases (so far; response due 3/30) demanding that Mike Meier tell the court why his cases should not be dismissed due to the inherent joinder issues in his cases (e.g., how bittorrent users can be sued together under the theory that they committed the “same crime at the same time” theory [when according to the plaintiff's complaint, the bittorrent users committed the illegal act of downloading and/or seeding the copyrighted materials sometimes weeks if not months apart]).

What I enjoyed most in the order was that Judge McMahon accused Mike Meier of [essentially] CHEATING the court out of the $350 fees for each of the 138 defendants (e.g., theft from the court of $47,950) who, according to the judge’s opinion should have been sued in SEPARATE cases. In addition, she states that the “misjoinder has resulted in an undercounting of the number of cases filed in this court and a concomitant distortion of the size of the court’s docket.” To make matters laughable, in response to a request from Mike Meier regarding one of the cases, she wrote, “[u]ntil I have decided whether joinder of these 139 defendants is proper-which I very much doubt-there will be no discovery. Motion denied. Get to work on responding to any order to show cause.”

Cases involved:

Patrick Collins, Inc., d/b/a Elegant Angel v. John Does 1-139 (Case No. 1:12-cv-01098)
Media Products, Inc. v. Does 1-59 (Case No. 1:12-cv-00125)

I don’t know about you, but when a judge accuses you of stealing $47,950 from the court, wouldn’t you worry that your cases won’t win? I expect to see more of these in the coming days and weeks with his other cases. More significantly, I’d be surprised if I saw any more filings from Mike Meier in the Southern District of New York. The last thing a copyright troll wants is a judge as an enemy who aggressively goes after his cases.

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