Now that my bittorrent case is dead… What to do about the settlement letters?!?

A majority of the calls into our office these past few days have essentially been, “I was dismissed from XYZ case, but the plaintiff has started sending me scare letters telling me that I must settle by a certain date or else they are going to sue me again in my home state. I see they have started suing people in smaller numbers in different states. Can they really take me to court?!? Will they take me to trial if I don’t settle?!? What should I do?!? Should I settle?!?“

Up front, almost every knowledgeable plaintiff copyright “troll” attorney has shifted from suing thousands of defendants in one lawsuit to suing smaller numbers of defendants in smaller lawsuits (e.g., v. Does 1-23, v. Does 1-56, etc.) in many cases in the defendants’ home states. However, the filing of the lawsuits themselves — even against smaller groups of Does or against individuals — do not suggest that the plaintiff attorneys have any intention of moving against those particular Does. Over the past year, a number of plaintiff attorneys have sued individuals, but the lawsuits then just sit there for months at a time.

I have a strong suspicion that the follow-up lawsuits are merely second chances for the plaintiff attorneys to prove that they “are serious” about moving forward against formerly dismissed defendants. I would be unimpressed if people got named, sued, and served, and then another one of their settlement “scare” letters arrived at the repeat defendant’s home stating, “We’re ready to move against you today if you would like. However, if you would like to settle, we’re willing to extend an olive branch of $X thousand dollars,” (that amount being significantly higher than the $3,500-$4,500 they are currently trying to extort from defendants.)

The reason it is so easy for them to name and serve a defendant is because plaintiff attorneys know that the burden to hire an attorney and to file an answer within 20 days falls on the accused defendant, and if he misses this deadline, he defaults in his case and the plaintiff automatically wins. Once the default happens (e.g., by not hiring an attorney and timely filing an answer), this becomes yet one more opportunity for the plaintiff to write a “you defaulted on your case; pay us $X thousand dollars or else we will file a default judgement against you where we might get a $30,000 judgement, or possibly even a $150,000 judgement against you.”

As for whether the plaintiffs have the manpower or the resources to take their cases to trial, my opinion is that [with few exceptions,] they probably do NOT have the resources to do so. Copyright infringement lawsuits are expensive to defend, and they are just as expensive to prosecute. Remember, the burden here is on the plaintiff to prove guilt, not on the Doe Defendant to prove he didn’t do it. The MPAA and the RIAA tried taking defendants to trial a few years back and you see how ineffective that strategy was (they have since abandoned the business model of suing downloaders, [as their former multi-million dollar judgements have been recently reduced to pennies on the dollar]).

Then, the next question is whether Dunlap Grubb & Weaver, PLLC (now sending letters as another law firm, *how deceptive*) with Ellis Bennett, Nicholas Kurtz, and the other attorneys has the manpower to bring these cases to trial, I believe the answer is no. I have no doubt they might sue people individually. I have no doubt they might spend the few thousand dollars to hire a digital forensics expert to take a mirror image of the accused downloaders’ hard drives, and even to do a few depositions on the defendants themselves. However, beyond that — beyond a summary judgement motion where the plaintiff would ask the court to find the defendants guilty or not guilty as a matter of law based on the evidence gathered by the forensics team and by the depositions — I doubt they have the manpower or resources to move forward to trial, and I would be the first to hop on a plane and watch the case firsthand with popcorn in my hands if they did.

Now as for whether you should settle. Up front, each defendant’s risk tolerance of being named and sued is different, and the effects of being sued differ based on each defendant’s financial situation and whether they are set up to be protected from such a loss. People with assets which are unprotected should obviously take being sued more seriously than someone without assets, or than someone who’s assets are properly shielded (e.g., either through umbrella liability insurance, various asset protection strategies, or through the use of corporate entities or trusts). That being said, let’s chat about the risk of being sued.

In short, there is a website — http://www.rfcexpress.com which lists all the cases which are filed in each of the federal courts across the US. You can easily do a search for Copyright cases in your particular court, or in any or all federal courts. The best search is to list either the plaintiff’s name, e.g., “West Coast Productions”, “Hard Drive Productions”, or “Liberty Media Holdings”, or you can see the newer lawsuits filed against various does by doing a search for “Does 1-” which brings up most of the bittorrent cases.

Then there is the question of can they even sue you? The answer is yes, but the analysis should not be one of fear or “maybe they will, maybe they won’t,” but a cold, calculated analysis of RISK. Most federal courts require that an out-of-state attorney hire local counsel before filing suit against defendants. Thus, if you look in your state and you do not see any lawsuits from your plaintiff (or your plaintiff attorney), then chances are they do not have local counsel yet in your state and the risk of being sued is low, and the need to settle is also correspondingly low. That being said, if you see that your plaintiff attorneys have sued defendants in your state (or if you see that their office is physically in your state), then that means that they can sue you themselves and they do not need local counsel, or that they have likely hired local counsel in your state — in either case, the risk of being sued skyrockets, and the need to settle also becomes quite high. As to whether to wait to be sued and then settle, or to settle proactively, you know that you have a better chance of negotiating if you do not have a lawsuit with a deadline looming like a gun at your forehead. Thus, if you are going to settle, it is best to settle proactively and before you get sued. If you wait until after you are sued, 1) there may be no settlement then, or 2) there may be a ridiculously high settlement after they sue you.

Lastly, should you run off and settle your case on your own? Bad idea. It is better to have an attorney negotiate your settlement because 1) they could probably get a better deal than you because of increased negotiating power from other clients or a former relationship from past negotiations, 2) your attorney will not identify you during the negotiation process and thus your settlement negotiations are anonymous, 3) your attorney will not incriminate you with their discussions while you might, and 4) your attorney has the power to negotiate the settlement agreement to properly protect your interests whereas a defendant calling the plaintiff will probably be railroaded and will probably be told to either “take the contract as it is or leave it,” — not to mention that without an attorney, you do not know the clauses that need to be in the contract to protect your interests, e.g., from being sued later for attorney fees and costs. Last, but not least, it goes without saying that as soon as your attorney tells the plaintiff attorney that they are representing you, the plaintiff attorneys are NO LONGER ALLOWED TO CONTACT YOU, AND ALL COMMUNICATIONS MUST GO THROUGH YOUR ATTORNEY. Thus, no more settlement solicitation calls, no more midnight voicemails, no more scare letters, no more threats, and no more harassment. Everything goes through your attorney’s office.

In sum, these plaintiff attorneys will no doubt try to push the envelope and sue individuals and/or smaller groups, and as potential defendants, settling should not immediately be your first inclination. There are factors to consider, and there are terms to negotiate if you do decide to settle. Missing the step of negotiating your settlement can get you sued for something you thought you settled, or can get you hit with fees and costs you did not realize you agreed to in the contract. Caveat emptor. Beware and vigilantly protect your interests when settling, or do not settle in the first place. And for G-d’s sake, do not visit the plaintiff’s website and log on to see your settlement, and then not settle. You must assume they are tracking you. If you are going to settle anyway, the last thing you want to sign is a boilerplate settlement agreement which has every term in their favor and none in yours. Be cautious.