Just as soon as I hit the “submit” button on the last post, I received an e-mail from a potential client that Lucas Entertainment, Inc. has begun contacting people about settlement negotiations for their accusation that the internet subscriber has violated copyright laws by downloading copyright protected media. To avoid cutting-and-pasting this e-mail reply to each of my clients and/or potential clients, I am posting it here for your review.
Dear XXX,
It is good to hear back from you, although I wish it were under better circumstances. If you read my blog entry entitled, “Torrent Downloaders Accused of Downloading Illegal Movie Files Now Wonder, ‘What Happens Now That the Subpoena Date Has Passed?'”, you’ll get an idea of what has been going on these past few weeks, and why you have been contacted so quickly with an offer to settle.
My goal in our initial correspondences was to protect you against it ever coming to where you are now. Feel secure, however, in that you are a student with no income, and even if they persisted, for the time being you are what people in the industry call “judgment proof.” You have nothing they can take from you (except perhaps your freedom and tarnishing your criminal record if they can prove that you violated a criminal statute, but at this stage, I understand that they are likely only looking for money).
Without meaning to scare you, the prospect of them going after you legally is an expensive proposition for them. They will need to pay the court fee to file suit; they will have to have your served in a court in which they have jurisdiction over you; and they will need to prove their case. I can certainly defend you in such a case, but it will be for far more than the $1,500 steep discount I have been offering people to defend them up through the negotiation phase.
You have a few choices here. First, you can continue representing yourself without an attorney as you have been doing so far. You can negotiate a lower settlement rate (by the way, ask yourself what exactly you are settling if they have not yet named you in their lawsuit nor have they filed suit against you in your jurisdiction), or you can pay their demand. If you do, make sure you receive a release that they will not pursue you any further in any capacity (civil, criminal) for this movie or for any other movie you download.
Second, you can play the “Take a hike, I’m judgment proof” card and hope they don’t decide to come after your civilly or criminally.
Last, but not least, you can hire me to represent you in this negotiation. You can decide whether you would want me to negotiate on your behalf for an amicable settlement or to come at them with guns blazing, so to speak. I would immediately send them a letter indicating that you are now represented by an attorney and that they should cease all attempts to contact you regarding this matter. Instead, all communications would come through me. Depending on how you would like me to proceed (amicable settlement or guns blazing), if you decide to settle, I would participate in the negotiations to get the best terms for you and I would review the settlement terms to make sure you are shielded against future actions for this same download activity. The last thing you want is a criminal lawsuit after you have just spent a few thousand dollars settling with them. If you wanted me to go the guns blazing defense route, I would make them prove their case and would find every defense applicable to you to make it as difficult as possible to validate their claim against you.
Either way, if you and I spoke, I would tell you that my fee is $1,500 as it is for everyone else who comes my way. I am able to offer this steep discount off of my regular rate and offer flat rate billing because there have been so many of you who have contacted me about the same issue and thus the work I do for one client is the same for everyone else.
If you decide to take me on as your attorney, I would need you to e-mail me your full name, address, and phone number. I will write up a fee agreement and will e-mail it to you. I’d like to have you sign the fee agreement and get it back to me ASAP with a cashier’s check, bank check, or money order (perhaps you can send it by FedEx if you’d like), as you do not have much time left given your 9/18 deadline. Normally a regular check is fine, but I cannot take you on as a client only to have your check bounce a week or so later given the time restraints; nothing personal, of course.
Keep in mind that until you have done this, I am not your attorney and as such, nothing I have said above is to be taken as legal advice. If you decide not to go with me, I advise you to seek independent counsel on anything I have said above; moving forward on your own should be done with caution and at your own risk. I cannot protect you if I am not your attorney.
I’m sure this e-mail is exactly what you wanted to hear at 11:50pm at the beginning of your school semester. I would suggest getting your parents involved if you are unable to afford my fee or the settlement agreement.
Warm regards,
Robert Z. Cashman