5/17/2012 NOTE: I want to make sure the blog continues to be a source of accurate information, and so while I have no doubt that the forum shopping I speak of in this blog happens (especially with copyright trolls filing lawsuits all over the place, sometimes implicating the same defendant in different cases (as is what happened with the Millennium TGA, Inc. Texas case), it was brought to my attention that Jason Kotzker filed cases in the Southern District of New York before receiving the adverse ruling in the Eastern District. For this reason, I am changing the blog article to reflect this fact.
I received a few inquiries in the past day or so about evidence that has surfaced that Prenda Law Inc. is involved in what is known as “forum shopping.” Forum shopping in the context of our bittorrent cases is essentially where a plaintiff attorney (“copyright troll”) receives an adverse ruling from a judge in a particular federal district. “No problem,” the troll thinks. “There are many other federal districts in the country, some of which where the judges have not heard about our pornography bittorrent lawsuits. We’ll file there instead.” (See John Steele’s war of words with Sophisticated Jane Doe in the comments section of this article, specifically page 2.) So the troll re-files its lawsuit, sometimes shamelessly doing a “cut and paste” job, implicating literally the same IP addresses they implicated in lawsuits they filed and dismissed in other jurisdictions. More about Prenda Law Inc. and forum shopping here.
The problem is that Prenda Law Inc. isn’t the only one doing this — many, if not all of the copyright trolls are doing the same thing, and just because “other people are doing it” doesn’t make it any more ethical.
This issue becomes relevant is when a local attorney receives an adverse ruling essentially shutting down bittorrent lawsuits in a particular jurisdiction. So far, as you know, you and we have been quite successful in educating judges as to the issues in the bittorrent cases [which has resulted in many case severances and dismissals], and the more judges learn about the copyright trolls’ tactics, the quicker they’ll shut down one or more of a plaintiff attorney’s lawsuits. The question becomes — and this is where forum shopping becomes relevant – IF A JURISDICTION SHUTS DOWN A COPYRIGHT TROLL’S CASES, IN WHICH COURT DO THEY RE-FILE THE LAWSUIT? After all, the plaintiff attorneys are under the instructions from their clients (here, the production companies) to “sue this list of IP addresses who downloaded our stuff.” If a court in a particular jurisdiction will no longer entertain such lawsuits — and each John Doe Defendant is potentially worth THOUSANDS OF DOLLARS IN SETTLEMENTS — where do the plaintiff attorneys sue these defendants? Right or wrong, EVEN IF THEY SUE THEM IN THE WRONG COURT, MANY DEFENDANTS STILL WILL SETTLE. Thus temptation for the copyright troll to “stick them into another lawsuit” is no doubt too great — “after all, who tracks this stuff?” Hence, this is where forum shopping becomes an issue.
As just one example of a court shutting down a bittorrent case making it difficult to file in that federal court again (let’s see if I am proved wrong), it was brought to my attention yesterday that Jason Kotzker filed a handful of new cases — 8 in total — which he filed in the U.S. District Court for the SOUTHERN DISTRICT of New York (FYI, this is where Mike Meier is having trouble with his cases consolidated by Judge Forrest). These cases are:
Newly filed in the New York SOUTHERN District Court – Jason Aaron Kotzker of the Kotzker Law Group
Malibu Media, LLC v. John Does 1-11 (Case No. 7:12-cv-03810 – Judge Ramos)
Malibu Media, LLC v. John Does 1-8 (Case No. 7:12-cv-03812 – Judge Seibel)
Malibu Media, LLC v. John Does 1-16 (Case No. 7:12-cv-03818 – Judge Ramos)
Malibu Media, LLC v. John Does 1-17 (Case No. 7:12-cv-03820 – Judge Karas)
Malibu Media, LLC v. John Does 1-21 (Case No. 7:12-cv-03821 – Judge Ramos)
Malibu Media, Inc. v. John Does 1-7 (Case No. 7:12-cv-03823 – Judge Karas)
The funny part about this is if you remember my “Malibu Media, LLC – Friend of Foe? Foe.” article posted on March 23rd, 2012, you’ll immediately notice that Jason Kotzker was filing in the EASTERN DISTRICT of New York. However, no more. If you remember reading (and it does become difficult after a while to keep tabs on all of this) Sophisticated Jane Doe’s article on May 2nd, 2012 entitled, “New York judge blasts trolls’ practices, recommends banning mass bittorrent lawsuits in the district,” it should make perfect sense why Jason Kotzker is no longer filing in that court.
In all fairness, Jason wrote me and noted that he was filing in the Southern District of New York before this adverse ruling, and he is correct (I have listed a few of these cases below). That being said, I don’t think we’ll be seeing any more filings from him in the U.S. District Court for the EASTERN District of New York any time soon, lest he file and land the same judge who hits him with sanctions for filing a frivolous lawsuit.
New York Southern District Court – Jason Aaron Kotzker of the Kotzker Law Group
Malibu Media, LLC v. John Does 1-5 (Case No. 1:12-cv-02950 – Judge Oetken)
Malibu Media, LLC v. John Does 1-5 (Case No. 1:12-cv-02951 – Judge Griesa)
Malibu Media, Inc. v. John Does 1-7 (Case No. 1:12-cv-02952 – Judge Cote)
Malibu Media, Inc. v. John Does 1-4 (Case No. 1:12-cv-02953 – Judge Crotty)
Malibu Media, Inc. v. John Does 1-5 (Case No. 1:12-cv-02954 – Judge Buchwald)
Malibu Media, Inc. v. John Does 1-4 (Case No. 1:12-cv-02955 – Judge Engelmayer)
Malibu Media, Inc. v. John Does 1-4 (Case No. 1:12-cv-02960 – Judge Buchwald)
Malibu Media, LLC v. John Does 1-4 (Case No. 1:12-cv-02961 – Unassigned)
Malibu Media, Inc. v. John Does 1-4 (Case No 1:12-cv-02962 – Judge Baer)
Looking at even this list of cases all filed in the SOUTHERN DISTRICT of New York at the same time, you have to ask yourself — why did Jason Kotzker break these cases into “John Does 1-4″ cases, when he could have easily filed the lawsuit as Malibu Media, LLC v. John Does 1-42? Are you telling me that breaking this case into 9 SEPARATE CASES resulting in 7 SEPARATE JUDGES [whereas 2 are known to rule against copyright trolls] is not forum shopping?!? Are you kidding me??
Here is my solution. We have learned from past experience, judges need to be educated on the issues, and sometimes from non-parties, sometimes from us attorneys whispering into their ears, and sometimes through mainstream channels via the EFF, the ACLU, through their use of amicus briefs. For this reason, I would like to see more people sending letters to the chambers of Judge Ramos [Phone: (914) 390-4290], to the chambers of Judge Karas [Phone: (914) 390-4145], and to the chambers of Judge Seibel [Phone: (914) 390-4271] and the others letting them know exactly what is going on. Tell them what cases have been filed, and tell them which other judges have the other cases. Speak about jurisdiction. Speak about joinder. Speak about the phone calls you have received from the plaintiff attorney’s so-called “collection” agents. Now obviously calling up and ranting won’t get you anywhere. However, calling up each Judge’s chambers and asking for their fax number, and then sending over a well written letter to the judge can certainly get some results.