Feeds:
Posts
Comments

Archive for the ‘Texas (TX)’ Category

After my “Dallas Buyers Club, LLC is a modern-day Icarus Story (TXSD)” article on August 13th, I called Keith Vogt, the plaintiff attorney for Dallas Buyers Club. In our call, I ascertained his motivations regarding how he plans to approach Judge Hughes here in Texas, and what he plans to do with the other cases (duck and run, or push forward).

As I suspected, he expressed no “duck and run” mentality (not even privately), as we have seen in similar past cases with other past “copyright troll” plaintiff attorneys. In fact, Vogt appeared to be undeterred considering the outcome of the case, mentioning that he has NINE (9) other cases alive and well in the Southern District of Texas, seven of which were in their INFANT STAGES and all current cases are assigned to judges other than Judge Hughes.

Below is a list of those new cases:

Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02119)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02120)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02121)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02124)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02217)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02219)
Dallas Buyers Club, LLC v. John Does 1-25 (Case No. 4:14-cv-02220)

and of course, the two older cases:

Dallas Buyers Club, LLC v. John Does 1-31 (Case No. 4:14-cv-00248)
Dallas Buyers Club, LLC v. John Does 1-45 (Case No. 4:14-cv-00815)

Each of the newer cases were filed on either 7/24 or 8/2 (before Vogt’s problems with Judge Hughes surfaced). I have been watching these cases, and the judges in most of them have granted permission for Dallas Buyers Club, LLC to send subpoenas to the ISPs to ascertain the identities of the John Doe Defendants. These people will be receiving letters from their Comcast Xfinity Subpoena departments in the coming days and weeks.

Two interesting items to note: Plaintiff attorney Vogt has roughly 175 potential defendants, each of whom will likely be asked for a settlement of thousands of dollars. He has also not filed any new cases since the August 13th debacle with Judge Hughes, likely understanding that they will be assigned over to him, and this may or may not be a fight he wants to instigate just yet. On a more concerning note, on Thursday, Vogt named and served eight (8) John Doe Defendants in his 4:14-cv-00815 case. This is one of his older cases, and I understand that he needed to do so because Judge Gray Miller was pressuring him to do so before the upcoming hearing. Instead of posting the names of the named and served defendants, I have pasted a screenshot of the docket which lists the named defendants — you can see the named defendants referenced below in Documents 21 & 22.

Named and Served Dallas Buyers Club, LLC defendants

Dallas Buyers Club, LLC attorney Keith Vogt names and serves defendants in the 14-cv-00815 lawsuit.

In sum, on August 13th, I commented to a friend that I did not think the judges in Texas spoke to each other. I am still of the opinion that federal court judges appear to lord over their court as if their court is their own sovereign territory. It would be nice if one judge poked his head into another courtroom once in a while.  If he or she did, they would notice that the proper answer to cases such as these is CONSOLIDATION.

In a perfect world, Judge Hughes would consolidate all of the Dallas Buyers Club, LLC cases into one case, since all of the cases relate to the same common questions of fact.   Doing this would prevent contrary rulings from neighboring judges, and it would create a common rule of how to handle, facilitate, and ideally to dispense with all forms of “copyright trolling” cases in the federal courts.

Read Full Post »

2/4/2013 UPDATE: CONGRATULATIONS TO ALL CASHMAN LAW FIRM, PLLC CLIENTS WHO HAVE BEEN DISMISSED FROM THIS CASE!

To glance back at the Patrick Collins, Inc. v. Does 1-75 (Case No. 3:11-cv-00389) case in the Southern District of Texas case that we have been tracking almost daily since August, 2011, I wanted to give a quick snippet that I think this case is about to go bust.

Lionel Martin (is he even still doing these cases?) is the plaintiff’s local counsel for this lawsuit. Late last year, the judge ordered that plaintiff Patrick Collins, Inc. has taken too long with this case, and that they decide whether they will proceed against each defendant or not. Their deadline to decide (by the way) is today.

Now obviously things can go terribly wrong in this case, and if so, we would see a whole SLEW of filings naming a number of the 75 defendants in the next twenty-four hours.  More likely, we’ll hear radio silence from the plaintiff attorney, and the case will be dismissed.  I’ll let you know as soon as I hear anything further.

Read Full Post »

So… I was in the Southern District of Texas court this afternoon, and I thought that I would stop by and sit in on the Sunlust Pictures, LLC v. Does 1-75 (Case No. 4:12-cv-00695) case management hearing.

Prenda Law Inc.’s local counsel was a no show.

Using the court’s speaker phone, the clerk called Douglas Clemons, Prenda’s answer to Doug McIntyre’s withdrawal as local counsel from all of their cases.

RECEPTIONIST: “Manfred Sternberg & Associates, how may I help you?”

CLERK: “We are looking for Douglas Clemons.  He has a hearing scheduled with Judge Ellison.”

RECEPTIONIST: “With who?”

CLERK: “Judge Ellison.”

RECEPTIONIST: “Let me see if he is here… No, he is not in the office.  I don’t even see anything on his calendar for today.  I’m going to transfer you to his cell phone. [click. dial tone.]“

In other words, Doug Clemons, local counsel to Prenda Law Inc. didn’t even know he had a hearing this afternoon.  This baffles me — I’ve known about it for weeks.  I expect that he has some explaining to do.

As far as the Sunlust Pictures, LLC v. Does 1-75 case is concerned, the hearing from today will probably be rescheduled with no consequences to the plaintiffs or to Prenda Law Inc.’s local counsel.  That being said, I do want to point out that the John Doe Defendants in this case likely have nothing to worry about — well, at least the Comcast Cable Communications subscribers.

Comcast refused to comply with the subpoena issued to them to release the names of the accused defendants, and Prenda sued Comcast in DC in a “motion to compel” case entitled “Sunlust Pictures, LLC v. Comcast Cable Communications, LLC” (Case No. 12-mc-00383).  They have done this before.  The judge denied Prenda’s motion, and thus Comcast will not be complying with the subpoena which essentially means that any Sunlust Pictures, LLC clients here in the Texas lawsuits are home free.  Your plaintiff attorneys will not know who you are.

As for non-Comcast defendants, there will be another case management hearing.  It’s probably a good idea to mount a proactive defense and at least let yourselves be heard.  Judge Ellison is a fair judge, and he will listen to you regardless of whether you are represented by an attorney or not.

I think more generally that it is probably a good idea for Doe Defendants across the country to start showing up to these hearings.  If you don’t have an attorney, wear a tie and a jacket, and say hello to the judge and the clerk.  If you do not have an attorney representing you, then represent yourselves.  I don’t think one local counsel who doesn’t have his heart invested in these cases can stand up to many of you, especially when you are passionately against these kinds of lawsuits.

Read Full Post »

I sometimes feel like a duck in a pond — everything seems calm on the surface, but under the water, I am directing local counsel with a fury. No doubt copyright trolls operate the same way (John Steele did it, and quite frankly, this is the only way a multi-jurisdictional law practice can properly operate).

The problem happens, however, when one of your local counsel drowns. What do you do — do you let them take the fall? Or do you do whatever it takes to support them even when your cherished law firm name is not on their court filings?

I am sad to share that my nemesis of sorts, Doug McIntyre, has drowned, and his copyright troll employer appears to have let him take the fall.

Doug McIntyre was the name that appeared on a number of Prenda Law Inc.’s cases — names such as Millennium TGA, Inc., Bubble Gum Productions, LLC, Pacific Century Int’l, Ltd., and Sunlust Pictures, LLC (to name a few). What I thought was commendable was that for reasons we cannot discuss (think, “There is no honor among thieves. Copyright troll thieves”), Doug went ahead and started taking on his own clients — West Coast Productions, Inc., Combat Zone Corp. — and started to mold himself into a copyright troll rather than local counsel for someone else. I actually thought it was commendable that he was going off on his own and was standing on his own two feet rather than being a patsy for some other troll.

But then the KHOU Channel 11 News did a story on Doug McIntyre (as documented by DieTrollDie here), and reporter Scott Noll pinned Doug McIntyre as the mastermind copyright troll for First Time Videos, LLC and many of Prenda Law Inc.’s clients. Prenda Law Inc. said NOTHING and let him take the fall.

On a personal note, even though Doug and I are enemies on paper, I couldn’t help but to feel bad for him because he was merely local counsel filing motions for his employer, John Steele, the master copyright troll himself. And yet, Doug’s reputation here in Houston is tarnished as being the fall guy for someone else. As Captain Duck, I want to reiterate here that I would not let any of my local counsel in any state take the fall, and that all blame would always rest with my firm, the Cashman Law Firm, PLLC.

That being said, I’m sorry to say that as of yesterday, it appears to me as if Doug McIntyre has withdrawn as counsel from all of Prenda Law Inc.’s cases, and like other copyright trolls (e.g., Kevin Harrison), he appears to have left the game.

MCINTYRE’S TEXAS SOUTHERN DISTRICT CASES:
Bubble Gum Productions, LLC v. Does 1 – 60 (TXSD; 4:12-cv-00262) — WITHDRAWN
Millennium TGA, Inc. v. Doe (TXSD; 4:11-cv-04501) — WITHDRAWN
Pacific Century International Ltd. v. Does 1-20 (TXSD; 4:12-cv-00698) — WITHDRAWN

As Doug’s replacement, Prenda hired a new “Doug,” Doug Clemons, who has “significant Federal Court experience which he gained from flood insurance litigation.” Aside from the joke that he has relevant litigation in torrent litigation (my apologies for the dry humor), this new “Doug” has ZERO experience in copyright law. While I would ordinarily say “this will be fun” (as I do anytime I see a new copyright troll), quite frankly, even with this new patsy at the helm, I’m still fighting John Steele in these cases because in my humble opinion, Steele is the one filing the motions in the cases anyway. Thus, I expect to see more of the same.

In sum, welcome Doug Clemons, Prenda Law Inc.’s new patsy here in the Southern District of Texas (and let’s hope you have the originality to fight your own cases), and my condolences to Doug McIntyre, the local counsel who took the fall for Prenda Law Inc. I obviously say all of this with a bit of reservation, because you shouldn’t have taken the copyright troll cases in the first place, as Doug Clemons and his Manfred Sternberg & Associates, PC law firm are about to learn the hard way.

Read Full Post »

This morning I woke up to news that the Third World Media, LLC v. Does 1-4,171 (DC; Case No. 1:11-cv-00059) plaintiff voluntarily dismissed all 4,000+ defendants. “That was disappointing,” I thought. What a waste of a case.

What got me thinking is that it was NOT the DC court (or their copyright-troll-friendly rulings) which prompted this dismissal, as I have a lot to say about Judge Facciola and his recent slew of rulings in a number of copyright infringement cases (more on that in another blog entry).  As far as I am concerned, this dismissal had other reasons which caused it.

Now obviously I’m very happy when a case like this goes bust, but it didn’t go bust. The plaintiff (and their copyright troll attorneys at Dunlap Grubb & Weaver, PLLC) simply lost interest and dismissed the case. I’ve been seeing this a few times over the past two weeks, specifically here in Texas with copyright troll Doug McIntryre dismissing his West Coast Productions, Inc. v. Does 1-351 (Case No. 4:12-cv-00504) case here in the Southern District of Texas — some copyright trolls are simply losing interest in their cases and giving up and dismissing all defendants.

Now I can obviously give an educated guess as to why this is. Local attorneys who work for copyright trolls don’t get paid by the copyright trolls.  As much as I villianize the local attorneys here on the blogs, local attorneys who file lawsuits on behalf of copyright trolls usually get cheated by their copyright troll bosses. I have heard many stories of clearly oblivious local attorneys making statements such as “well, nobody is settling my cases,” when I regretfully know the opposite is true. I once read a motion by a prolific copyright troll who wrote, “there is no honor among thieves” (referring to the bittorrent users who he was suing in his cases). Quite frankly, it is my opinion that this is probably the case between the copyright “trolls” themselves.

Then again, I have heard stories that the copyright trolls themselves often have trouble with the production companies (their clients, the porn companies) who have retained them to sue John Doe Defendants in the various lawsuits. I have often heard stories that behind each of the lawsuits is a imbecilic man with a short temper and a small brain who screams and yells at the copyright trolls to sue everybody on the planet. The problem is that these clients don’t want to pay the legal bills or commissions that they legitimately owe to the copyright trolls, as if they expect them to work for free.  Again, “there is no honor among thieves.”

And then again, (I have to note this,) I believe that there are instances where the copyright troll lawyers cheat their clients as well, binding them to settlement agreements and accepting money from defendants for infringements of their copyrighted works WITHOUT EVER TELLING THEIR CLIENT that this money was received.  The strategy: Sue on behalf of one production company, accuse the defendant of also infringing another production company’s copyrighted works, collect settlements for both infringements.  So I believe it goes both ways.  Production companies (clients) cheat their attorneys out of commissions and fees, and the attorneys accept settlements and never tell the production companies about it.  Again, “there is no honor among thieves.”

In short, while I do not know the politics of why a plaintiff attorney drops a case without explanation such as what you see here, it is my expectation that the reason for both of these cases is that there is conflict between the copyright troll attorneys, and the production companies in which they represent. Whether it is that the copyright troll attorneys are asking for too much money from the production companies (greed), or whether it is that the production companies who are not paying the copyright trolls, I don’t know or care. As far as I am concerned, my clients are being dismissed from the cases against them, and conflict between copyright troll attorneys who sue defendants and their clients can only be good for the world.

Side thought: As far as the copyright trolls cheating the local attorneys who they hire to file lawsuits on their behalf? While it frustrates me when I hear stories about the copyright troll bosses cheating their local counsel, part of me also thinks that there is also justice in the world. At the end of the day, these local counsel made a conscious decision to try to profit off of extorting thousands of dollars from each internet user (legal or not, we’ll see), and even if an internet user did download the title(s) he or she was accused of, there is no reason for them to pay thousands of dollars (often their life savings, or more accurately, their parents’ life savings) for what often ends up being a porn video where they could have purchased the DVD title for $34.99.  Obviously the distinction here is “actual damages” ($34.99) versus “statutory damages” (up to $150,000 for each infringement), and quite frankly, it is the copyright law that is broken [or that is being misapplied to downloaders], and not the lawsuits themselves which are inherently blind, or at least they are supposed to be — purposefully ignoring bias from certain DC judges.  That being said, only a piece of work would capitalize on this misapplication of the law and extort thousands of dollars from a defendant.  I really think the courts (and the law) needs to make a distinction as to who is a “pirate” and who is really just an innocent infringer.

Read Full Post »

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.

Read Full Post »

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.

Read Full Post »

Older Posts »

Follow

Get every new post delivered to your Inbox.

Join 113 other followers