AF Holdings, LLC v. Does 1-1,140 — Dismissed, but according to the plaintiff’s plan.

On Friday I wrote a scathing review of the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case dismissal, but I did not post it.  In short, congratulations to the Cashman Law Firm, PLLC clients (and all the others implicated in this case) who have been dismissed from the case.

The difficulty I am facing is that while being dismissed is the goal of any John Doe defendant in a bittorrent case, in my opinion, I am uncomfortable with the way the dismissal happened. 

As many of you know, there was new precedent set by Judge Facciola’s ruling in the West Coast Productions, Inc. v. Does 1-1,434 (Case No. 1:11-cv-00055) case, and as a result, Judge Reggie Walton gave the plaintiffs until March 9th, 2012 to start naming or dismissing defendants.  In short, instead of admitting improper jurisdiction, yet another D.C. judge opted to invoke the Federal Rules of Civil Procedure, Rule 4(m) which gives plaintiffs 120 days to either name or dismiss defendants.  Understanding that the Prenda Law Inc. plaintiff attorneys had no interest in continuing the lawsuit against individual Doe defendants, they dismissed the case.

Now while it is always nice when opposing counsel opts to kill a case rather than move forward against defendants, Prenda Law Inc.’s local counsel revealed more than he probably should have to the court.  In a move which probably angered Paul Duffy and his superiors, Tim Anderson wrote the following paragraph:

Plaintiff acknowledges the Court’s busy docket; Plaintiff is currently engaged in settlement negotiations with a substantial number of putative Doe Defendants.  Rather than prematurely initiate litigation against individuals who may ultimately wish to resolve Plaintiff’s claims via settlement — and thus needlessly burden the Court — Plaintiff believes that dismissing the claims against the remaining non-settling Doe Defendants in this action without prejudice in lieu of filing actions against non-settling individuals strikes a favorable balance between preserving Court resources and safeguarding its intellectual property rights.

In other words, “Court, we are dismissing the case so that you do not need to waste your time looking over us watching what we are doing.  We would prefer not to have you watch us anyway because you will force us to do something we don’t want to do (e.g., “name” defendants), which would make our extortion scheme much more costly to us and thus we wouldn’t be able to sustain our operation if we had to actually go after defendants.  So thanks to you, since we now have all the names we need from the ISPs of the putative Doe Defendants, we will continue to call and harass those who haven’t settled without having you worry about what we are doing.”

In short, I would have liked to see the judge issue an order indicating that since they have dismissed the case, they are no longer permitted to use the names they acquired from the subpoenas and collect settlements from putative defendants.  The legal system is not a tool to discover private information about internet subscribers only to dismiss the case and continue their extortion scheme offline.

For this reason, I suspect that you understand why I am not so happy with this case dismissal.  Getting your names only to dismiss the action was simply part of their plan all along.

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9 thoughts on “AF Holdings, LLC v. Does 1-1,140 — Dismissed, but according to the plaintiff’s plan.”

  1. What would you recommend as a course of action for a Doe in this case? For some further information, I have moved since my ISP released my information, they sent me a settlement letter, but not to my current place of residence, and I am no longer with the same ISP, no longer using the same IP, etc.

    I have only gotten one call from them, in which I did not pick up since I did not know the number, and they left a voicemail.

    Reply
    • Quite frankly the fact that they have your old address or that you no longer have that ISP, etc. is not relevant. If they have your phone number, they will keep calling. Also, whichever state you are in, you need to do a risk analysis as to whether they have filed against Does in your state’s federal district court. If not, then I would keep an eye on the rfcexpress.com website, but if so, the risk of them going after you significantly increases.

      Reply
      • Well this case is run by Prenda…. They just filed a response to an order from Judge Koh in N.California that of the 120+ cases they have filed around the country that they have NEVER named and served a Doe. Soo.. There is your risk analysis. you have a 0% chance of being named based on history. Rob, Prenda seems to be filing more cases in Texas.. Come on!! We want to see you become the Steve Yuen of Texas lol.

        Reply
  2. At this point would you recommend using your professional services? I spoke with you last year and decided to wait it out but now that the case was dismissed by the plaintiff themselves, are we just waiting to see if they file against us for the next 2 years?

    Reply
    • John Doe, as much as I would love to have you as a client, I don’t see why you would decide to use our firm’s services now that your case has been dismissed. Plaintiffs dismiss their own cases all day long. Unless you suspect that they will be coming after you personally in your home state (watch the http://www.rfcexpress.com website), or you are not in the mood to look over your shoulders for the next 3 years (SOL for copyright infringement is 3 years from the alleged date of infringement), there is absolutely no reason to settle their case against you.

      Reply
      • Rob,

        I have not read much about what happens after you are dismissed. Are clowns like Mark Lutz allowed to continue to call and demand settlements? Are there are laws or code of ethics(not like it matters with this group of lawyers) around this issue.

        Reply
      • Yes, they can and do continue to call and send “scare” letters (at least to those not represented by an attorney) threatening follow-up lawsuits if [dismissed] defendants do not settle.

        Even though Mark Lutz is not an attorney, he is under the supervision and control of Prenda Law Inc. and Paul Duffy (and is acting as their agent when making calls to defendants), and thus the firm is is bound by the attorney ethics rules. Whether they follow them or not is an issue outside the scope of this comment.

        Reply
  3. I was asking because I keep receiving calls demanding to settle and am hoping this isn’t going to continue for the next few years but who knows right? I am been keeping an eye on http://www.rfcexpress.com but haven’t seen anything to indicate that they might go after Washington residents.

    Reply

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