Response to the verdict in the Malibu Media Bellwether Trial

malibu-media-case-consolidations

The ‘Bellwether Trial’ is Malibu Media’s FIRST Case to EVER Go To Trial

ID-100157775Image courtesy of @artur84 / FreeDigitalPhotos.net

Much of the bittorrent world is saddened by the leaked news reports of the recent “Bellwether” case in the Eastern District of Pennsylvania (Malibu Media v. John Does, Case No. 5:12-cv-02088) where at least one defendant is reported to be facing close to $112,500 in damages plus attorney fees for the peer-to-peer downloads he is said to have taken part in. The plaintiff attorneys, along with Keith Lipscomb and others who have a vested interest in seeing bittorrent cases against internet users succeed are drinking champagne and celebrating their victory.

 NOTE: BEFORE READING THIS ARTICLE: If you have not already done so, and you are implicated as a John Doe in a Malibu Media, LLC lawsuit, read these first:
1) “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ]
2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements

FOR IMMEDIATE CONTACT AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

My opinions, my convictions…

It is both my professional belief and my personal conviction that copyright trolling lawsuits are wrong, and while there is nothing illegal in suing a defendant for copyright infringement, doing so in my opinion is unlawful and morally corrupt. These lawsuits are nothing more than a STAGE SHOW to permit a behind the scenes SHAKEDOWN of accused internet users, whether or not they actually participated in the accused infringement. For G-d’s sake, the “guilty” so-called “criminal” defendant merely clicked on a link, and downloaded a title that was openly shared with thousands of other downloaders. To hit that defendant with a shock lawsuit where they face $150,000 statutory damages for a video that could have been purchased for a few bucks is a disproportionate punishment for the “crime” of downloading copyrighted films. Rather, instead of suing downloaders and letting the piracy continue, why not just end the piracy problem by issuing a DMCA take down notice to the bittorrent tracker? The alternative of sitting in bittorrent swarms and employing tracking software to track the IP addresses of who is downloading to me just seems like an abusive step to what would otherwise be a simple problem of making the torrent files go away so that unsuspecting downloaders couldn’t click on the links.

It is my conviction that copyright infringement lawsuits are wrong because it is simply immoral to shake down EVERY John Doe Defendant (yes, each one) with the threat of having to defend a lawsuit in federal court unless they cough up tens of thousands of dollars for downloads that the John Doe Defendant often did not even take part in. I have personally seen copyright trolls such as Malibu Media, LLC take large sums of money from defendants who did not do the download, but who were pressured into settling simply to avoid being named in a lawsuit. It is no secret that defending a case is sometimes significantly more expensive than settling a case.

Why the Bellwether Trial will not be binding on other courts.

Yet even with the pending resolution of this lawsuit, accused defendants across the U.S. in their own lawsuits should understand that this ruling will not be binding on other federal courts in other federal districts. Each federal court makes their own rules as to what constitutes copyright infringement, and what evidence is required to prove a defendant guilty when the so-called infringement happens via a bittorrent download. This is our job as attorneys — to know which districts have rules in favor of bittorrent users, and to know which districts have ruled in favor of the copyright holders. No doubt, the Eastern District of Pennsylvania will now become a favored spot to sue internet users across the U.S. for copyright infringement.

Why this so-called “trial” will not affect how we see Malibu Media, LLC cases.

Lastly, on a personal note, this case does not change the way a lawyer handles copyright infringement cases. At least in our Cashman Law Firm, PLLC, there is no silver-bullet approach — some defendants choose to settle, and many do not. Considerations as always involve 1) whether the download actually happened and the circumstances surrounding the accused activities, 2) the accused defendant’s willingness to fight and defend a copyright infringement lawsuit, 3) the accused defendant’s aversion to risk of having their name become public knowledge in a court proceeding, and 4) the accused defendant’s financial ability to take each of the various pathways we suggest.

In summary, determining how to proceed is a question of RISK.

In sum, not all guilty defendants settle, and not all non-guilty defendants fight.  It is simply a calculation and a risk assessment that is based on the client’s desires, the federal district in which the lawsuit is filed (taking into consideration past bittorrent cases filed in that jurisdiction), the judge who assigned to the case (taking into consideration his past rulings), and the plaintiff attorney (or more frequently, the local counsel’s) proclivity towards naming, serving, and taking defendants to trial balanced with their willingness to negotiate an amicable settlement should we decide to go that route.

Bittorrent cases [in their current form] have now been around for three (3) years, and now we have a verdict where a case has been taken to trial — by Malibu Media, LLC surprisingly enough.  When we started, there were no cases taken to trial, and now there is one.  Before the appearance in 2010 of the bittorrent cases, all we had to go on were the old Napster and Grokster cases, combined with the various lawsuits filed by the RIAA / MPAA and miscellaneous copyright infringement files dealing with the internet. Up until now we have been developing case law surrounding peer-to-peer downloads as each case matures. Now we are starting to get some clarity as to the law surrounding bittorrent use.

What else can you tell me about the Malibu Media cases?

[2017 UPDATE] The best way to learn about Malibu Media, LLC is to read what happened to them as it happened.  The list of stories below (in the order I listed them) tell the Malibu Media story in a way that you will understand them.


FOR MORE INFORMATION ABOUT MALIBU MEDIA, LLC:Again, if you have been implicated as a John Doe defendant in a Malibu Media, LLC lawsuit, there are TWO (2) main articles you should read immediately:

1) “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ],” and then
2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements.”

FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info[at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

CONTACT FORM: Alternatively, sometimes people just like to contact me using one of these forms.  If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

    NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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    Malibu targets the wealthy in their geolocation tracking.

    malibu-media-case-consolidations

    Is Malibu Media, LLC using geolocation tracking to target the wealthy in their settlement scheme?

    In one word, yes.  Malibu Media is using geolocation tracking services to identify which neighborhoods are considered “wealthy.”  They take this geolocation tracking data and they use it to decide which defendants to sue.

    Malibu Media, LLC has been filing lawsuits across the U.S. with a fervor with one change — most of them appear to be “Single John Doe” lawsuits against defendants whom they believe have deep pockets.

    NOTE: BEFORE READING THIS ARTICLE: If you have not already done so, and you are implicated as a John Doe in a Malibu Media, LLC lawsuit, read these first:

    1) “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ]
    2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements

    FOR IMMEDIATE CONTACT AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

    Malibu Media is looking for… Deep Pockets?!?

    Yes, Malibu Media, LLC appears to be suing those defendants with deep pockets.  How?

    It appears that Malibu is using geolocation tracking services to at the geolocation data of the various IP addresses of the so-called downloaders.  They then focus their lawsuits to target defendants who live in towns which have high value residential homes. I know this because based on the individuals who call our office, a disproportionate number of them have commented that they have multi-million dollar estates, and they were wondering whether it was ethical to target high value individuals in their copyright infringement lawsuits.

    Malibu Media Incentives to Local Counsel??

    To make matters worse, Malibu Media, LLC appears to have incentivized their local counsel with financial rewards for bringing in higher settlements. In the olden days, I could have called one of their contacts directly, and within a few phone calls, I knew what kind of settlement a defendant could get based on how many “titles” or alleged instances of infringement they were accused of downloading. From there, the client and I would decide whether it made more financial sense to fight the case by waiting to be named and filing an answer in court, or whether it made more financial sense to settle the case. Malibu has complicated this process in order to provide the appearance of legitimacy for the courts. Now, they are having their local counsel negotiate the settlements themselves. This would be okay, but it is my experience that local counsel are asking for higher numbers than I know Malibu would have settled for just a few months ago. “The old settlement numbers you used to have with Malibu are no longer in effect,” one local counsel told me as she pushed for higher numbers. “We are doing this ourselves now.”

    And now Malibu Media is tracking their targets’ other downloads?

    To make matters worse, when Malibu Media, LLC identifies a downloader by his IP address, they track that IP address and monitor that defendant to see what other bittorrent files that defendant is downloading (wiretap?). They continue to monitor that defendant downloading non-Malibu Media titles such as “The Walking Dead,” “Homeland,” “Breaking Bad,” often creating a list multiple pages long of “other” infringing activities that defendant has taken part in. Their logic is that because a particular defendant downloaded those other titles, he is a “serial downloader” and thus it is more likely that he downloaded their titles as well. A number of us attorneys have explained to their local counsels’ deaf ears that just because a particular IP address downloaded a number of bittorrent titles does not mean that the accused defendant is that downloader. However, even the best attorney’s understanding of the law can be clouded when money influences that attorney’s understanding of it.

    Good news, the “other downloads” are inadmissible character evidence.

    On a positive note, in just a few weeks, we have seen judges rule that the “other” BitTorrent activity listed in their complaints [for works not owned by Malibu Media] is inadmissible under the Federal Rules of Evidence (“FRE”), specifically Rule 404 on “Character Evidence.” The reason for this is because “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” In other words, proving that a particular defendant is a “serial downloader” is not admissible to prove that on a particular date and time, that defendant downloaded Malibu Media’s copyrighted titles. Shame on Malibu attorneys for not knowing this.

    Further, judges have ruled that introducing evidence of “other” downloads is not relevant and is actually prejudicial to the defendant, and thus that so-called evidence is not admissible to prove that the defendant downloaded Malibu Media, LLC’s titles. As one example, Judge Stephen Crocker has frozen all of Malibu Media, LLC’s cases in the Western District of Wisconsin for this very purpose (link).

    In summary, these aggressive missteps will hurt Malibu cases.

    In sum, messing up on the Federal Rules of Evidence and doing so on each of their “Single Doe” upper-class cases was a big mistake which they might not be able to undo.  And also on a positive note, because they have filed so many “Single Doe” cases across the country, judges across the U.S. are looking deeper into their tactics and their evidence of infringement.  See @Ddragon229’s article on the FCT website, “Winds of change begin to blow on Malibu Media” for details on the character evidence issue.

    Despite this, Malibu Media, LLC continues to file lawsuits across the U.S. in alarming numbers, and in each case, they continue to file this prejudicial information of “other” downloads as their “Exhibit C” in each case. A snippet of cases filed in just the last few weeks is pasted below:

    Cases filed by Chris Fiore in the Pennsylvania Eastern District:
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02858)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02859)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02867)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02868)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02854-JP)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02855-MMB)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02856-JD)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02857-SD)
    Malibu Media LLC v. John Doe (Case No.2:13-cv-02863-PD)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02864-HB)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02765-MSG)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02766-MSG)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02767-WY)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02768-PD
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02769-RB)
    Malibu Media LLC v. John Doe (Case No. 2:13-cv-02770-CMR)

    Cases filed by Mary Schulz of Schulz Law PC in the Illinois Northern District:
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03726)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03699)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03700)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03703)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03704)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03705)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03706)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03707)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03710)
    Malibu Media LLC v. John Doe (Case No. 1:13-cv-03711)

    Cased filed by Paul J. Nicoletti of Nicoletti & Associates PLLC inn the Michigan Eastern District:
    Malibu Media LLC v. John Doe subscriber assigned IP address 71.238.205.92 (Case No. 4:13-cv-12231-MAG-MAR)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.42.185.159 (Case No. 2:13-cv-12210-RHC-MJH)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.4.96 (Case No. 2:13-cv-12213-SFC-DRG)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.84.236 (Case No. 2:13-cv-12214-AJT-MKM)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.60.140.87 (Case No. 2:13-cv-12216-PDB-RSW)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.62.41.133 (Case No. 2:13-cv-12217-VAR-RSW)
    Malibu Media LLC v. John Doe subscriber assigned IP address 69.14.181.108 (Case No. 2:13-cv-12218-NGE-DRG)
    Malibu Media LLC v. John Doe subscriber assigned IP address 69.246.89.172 (Case No. 2:13-cv-12220-AJT-DRG)
    Malibu Media LLC v. John Doe subscriber assigned IP address 67.149.158.6 (Case No. 2:13-cv-12197-GAD-PJK)
    Malibu Media LLC v. John Doe subscriber assigned IP address 67.149.89.224 (Case No. 2:13-cv-12198-PDB-MKM)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.40.123.7 (Case No. 2:13-cv-12200-GER-MKM)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.40.46.12 (Case No. 2:13-cv-12201-DPH-DRG)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.43.35.2 (Case No. 2:13-cv-12202-PDB-DRG)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.170.197 (Case No. 2:13-cv-12204-GAD-RSW)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.19.221 (Case No. 2:13-cv-12206-DPH-LJM)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.41.86.4 (Case No. 2:13-cv-12208-MOB-RSW)
    Malibu Media LLC v. John Doe subscriber assigned IP address 68.42.172.154 (Case No. 2:13-cv-12209-SJM-MKM)

    Cases filed by Paul J. Nicoletti of Nicoletti & Associates PLLC in the Indiana Northern District:
    Malibu Media LLC v. John Doe 12 (Case No. 1:13-cv-00166-PPS-RBC)
    Malibu Media LLC v. John Doe 5 (Case No. 1:13-cv-00164-PPS-RBC)
    Malibu Media LLC v. John Doe 9 (Case No. 1:13-cv-00165-PPS-RBC)

    PERSONAL NOTE: Even with all these cases, I have only listed 46 cases having 46 defendants. With the hundreds of filings, it becomes impossible to track and report on each case. The more I look at each of these cases, the more I feel as if they have succeeded in preventing attorneys like myself from tracking and reporting on each of their hundreds of cases. Obviously I am still here, and I am still reporting on these cases. My list of cases to track has just gotten a bit larger.

    What else can you tell me about the Malibu Media cases?

    [2017 UPDATE] The best way to learn about Malibu Media, LLC is to read what happened to them as it happened.  The list of stories below (in the order I listed them) tell the Malibu Media story in a way that you will understand them.


    FOR MORE INFORMATION ABOUT MALIBU MEDIA, LLC:Again, if you have been implicated as a John Doe defendant in a Malibu Media, LLC lawsuit, there are TWO (2) main articles you should read immediately:

    1) “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ],” and then
    2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements.”

    FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

    CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

      NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

      shalta boook now cta

      Why California Malibu Media Case Consolidations are Bad.

      malibu-media-case-consolidations

      UPDATED 2020 SUMMARY: Case consolidations (until this post) happened when a federal judge lumped together different cases which all suffered from the same flaws, e.g., improper jurisdiction, improper joinder, etc. and they dismissed them all in one order. This was a good thing! However, when a troll-friendly judge consolidated a plaintiff attorneys case to keep the cases alive — to manage the dockets in order to avoid inconsistent rulings — while these types of case consolidations were good for the court (and for justice), it was a bad thing for the defendants accused in those copyright infringement cases.

      case-consolidations-malibu-media
      Gamopy / Pixabay

      This post is not going to be one of your favorites, because not all my posts are going to similar to my “Malibu Media Goes Down in Flames” article (or the many other positive ones I have written to date).

      In short, when a judge consolidates a copyright troll’s cases, those case consolidations are usually a good thing. In the “olden days” (meaning, two years ago), lawsuits used to have literally THOUSANDS of John Doe Defendants in each case. The problem was that when those monster cases would fall, they would make a huge thump sound and thousands of defendants would go free with one judge’s order.

      As we predicted many months ago, the newer lawsuits would be smaller with fewer John Doe Defendants in each case. That way, if a “Malibu Media, LLC v. Does 1-10” case went bust, there would be twenty other cases still standing. Plaintiff attorneys quickly figured this out and started to sue just a few defendants in each lawsuit.

      Personal Jurisdiction (“Improper Location of Lawsuit”)

      Similarly, in the older cases, plaintiffs would clump together defendants from all over the country and they would sue them in the WRONG STATE.

      Obviously the rule the copyright trolls overlooked at the time is that “in order to sue a defendant, you need to sue a defendant where the DEFENDANT resides,” not in the court which is closest to the plaintiff attorney’s Chicago office. This was the issue of PERSONAL JURISDICTION (or more accurately, “improper jurisdiction”), where the plaintiffs would sue defendants in the wrong courts.

      However, the end result of suing people from across the US in one federal court is usually are case consolidations by the judges (resulting in a follow-up order dismissing the cases).

      However, more and more, we see with the Malibu Media, LLC bittorrent cases and the copyright infringement cases from other plaintiff attorneys (e.g., Jason Kotzker, Mike Meier, etc.), they are purposefully suing defendants in the CORRECT STATES so jurisdiction in most cases IS proper.

      Thus, by suing defendants where they live, Malibu Media has successfully avoided case consolidations for improper jurisdiction.

      Joinder (“Suing the Wrong Defendants Together”)

      In mostly every bittorrent case, there is still the issue of JOINDER which we have written about too many times to list. In short, in order to properly join together MULTIPLE DEFENDANTS in the same lawsuits, those defendants needed to have done the SAME CRIME AT THE SAME TIME. The actual legal terminology is the “same transaction or occurrence.”

      In the bittorrent world, that essentially means that the bittorrent users (now John Doe defendants) needed to have taken part in downloading and uploading copyrighted Malibu Media’s movies in the same bittorrent SWARM.

      Case consolidations have killed large sets of copyright infringement lawsuits where each of a plaintiff attorney’s cases are plagued with the same inherent flaws: they sue groups of John Doe Defendants for activities they participated in at unrelated dates and times.

      While this argument of improper joinder does not become relevant until a defendant is “named” as a defendant (meaning, served with paperwork which means they are no longer a John Doe, but their real name has been listed in an “amended complaint” in the case’s docket), it is still a problem with pretty much EVERY bittorrent case today (with exception of the various lawsuits by Kevin Harrison and Paul Lesko in his 4Twenty lawsuits where they sometimes sue the swarm rather than specific John Doe Defendants). However, it is not relevant to this discussion of case consolidations, but it was still worth noting.

      The Problem With The Smaller “John Doe” Lawsuits – Different CASE LAW in the same court.

      The problem many copyright trolls are now facing in the courts is that NOW THAT THEY HAVE CHANGED THEIR LAWSUITS TO SUE SMALLER NUMBERS OF DEFENDANTS, they usually “forget” to inform the court of RELATED LAWSUITS that they have also filed against other bittorrent users (this violates a number of federal courts’ local rules which could jeopardize their many cases).

      Different Judges Give Inconsistent Rulings

      The result of the plaintiff attorneys not telling the courts of the HUGE NUMBER OF LAWSUITS IN EACH COURT (you can look them up on http://www.rfcexpress.com just to see a few examples) is that each case gets assigned to a different judge (copyright trolls love this and actually rely on this when forum shopping), and each judge interprets the law as he understands it.

      In short, not linking the case together results in some bittorrent cases being dismissed by some judges in one court, and in some bittorrent cases (against other John Doe Defendants) being allowed to proceed by other judges in that same court. In short, not informing the court of related lawsuits results in INCONSISTENT RULINGS by different judges in the same district court.

      [This is called a SPLIT in the court’s decisions (even though the term “split” usually indicates judges from one jurisdiction (e.g., Southern District of New York) ruling one way, and judges from another jurisdiction (e.g., Central District of California) ruling another way.]

      Case Consolidations Give Consistent Rulings

      Case consolidations are the easiest way to avoid inconsistent rulings.

      The wonderful result we have seen from the torrent of lawsuits that have flooded the dockets of many federal courts across the U.S. is that judges have begun to CONSOLIDATE CASES and give one ruling that affects ALL OF THEM. In other words, no more inconsistent rulings.

      As exciting as the idea of case consolidations might be, for a while, we thought that when a judge consolidates cases, it is for the purpose of shutting them all down together (“the bigger they are, the harder they fall”). Such case consolidations have happened to a few attorneys’ cases already, and CASE CONSOLIDATIONS USED TO MEAN THE DEATH OF ALL THAT PLAINTIFF ATTORNEYS’ CASES. However, this is no longer the case with today’s case consolidations.

      As we learned in the Southern District of New York when Judge Forrest clumped together all of Mike Meier’s bittorrent cases, we thought these case consolidations were the end of Mike Meier’s lawsuits once and for all. WRONG. Now, months later, we understand now that Judge Forrest consolidated the cases merely so that she can MANAGE THEM TO AVOID INCONSISTENT RULINGS. To our shock and horror, Judge Forrest had no interest in killing Meier’s cases.

      Now comes Leemore Kushner‘s new bittorrent cases in the Central District of California, all from the Malibu Media, LLC (a.k.a. the “X-Art.com”) plaintiff. Following the copyright troll strategies of Jason Kotzker, Chris Fiore, Adam Silverstein, and Mike Meier, Leemore Kushner (see http://www.kushnerlawgroup.com [great website, by the way; almost as good as Kevin Harrison’s website]) filed a whole bunch of cases in the California Central District Court. However, she failed to tell the court that all of her cases were all related (oops).

      As soon as Judge Klausner took over the case, he noticed Malibu Media, LLC’s other cases, most of them filed by Leemore Kushner (and three by Adam Silverstein):

      CASES FILED BY LEEMORE KUSHNER OF KUSHNER LAW GROUP IN THE CENTRAL DISTRICT OF CALIFORNIA
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00647)
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00649)
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00650)
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00651)
      Malibu Media LLC v. John Does (Case No. 8:12-cv-00652)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03614)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03615)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03617)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03619)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03620)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03621)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03622)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-03623)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04649)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04650)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04651)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04652)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04653)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04654)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04656)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04657)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-04658)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04660)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04661)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-04662)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-05592)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-05593)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-05594)
      Malibu Media LLC v. John Does (Case No. 2:12-cv-05595), and

      CASES FILED BY ADAM M. SILVERSTEIN OF CAVALLUZZI & CALLALLUZZI IN THE CENTRAL DISTRICT OF CALIFORNIA
      Malibu Media LLC v. John Does (Case No. 2:12-cv-01642)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01647)
      Malibu Media LLC v. Does 1-10 (Case No. 2:12-cv-01675)

      Seeing all of these cases, no doubt the issues of copyright trolling, extortion, clogging up the court’s docket, and whether Kushner actually intends to take these defendants to trial or not was on his mind… or was it? I’m not so sure. Judge Klausner ordererd case consolidations of Kushner’s cases with an ORDER TO SHOW CAUSE why these cases should not be dismissed for… LACK OF PERSONAL JURISDICTION?? [different topic, their jurisdiction was fine. Keep reading.]

      In short, here are a large number of cases, and if Judge Klausner was against these copyright trolling / extortion-based lawsuits, he would have asked Leemore Kushner to explain to the court why these cases should not be dismissed for any of the other INHERENT FLAWS in these bittorrent cases, but NOT PERSONAL JURISDICTION.

      Malibu Media, LLC just solved the Personal Jurisdiction problem.

      The reason I say this is because IF THERE IS ONE THING MALIBU MEDIA, LLC GOT RIGHT IN THEIR LAWSUITS, IT IS PERSONAL JURISDICTION. You could be damn sure that is Leemore Kushner sued someone in California, then THEY LIVE IN CALIFORNIA. If Jason Kotzker sued someone in Colorado, then THEY LIVE IN COLORADO. The plaintiff attorneys have too much common sense from the mistakes of the past two years to sue people in the wrong jurisdiction.

      In summary: I am not happy about the case consolidations.

      For this reason, I am sad to say that I am not jumping up and down for joy about the fact that all these case consolidations took place, because I do not think they are going bust just yet. Anyone that speaks to me knows that I believe these cases have some really bad flaws which, if taken to trial, would cause Malibu Media, LLC to LOSE EVERY TIME.

      However, I suspect Malibu Media knows this as well which is why the game for them is to 1) sue John Doe Defendants, 2) settle as many as they can, 3) “name” those who do not settle, 4) settle those who are named for a higher amount, 5) go for a default judgement ($750 + ~$2K attorney fees, or $30K + attorney fees, but I’ve never seen a $150K default judgement), or dismiss those who are named, 6) re-file individually against those who did not settle, 7) settle with higher stakes, and 8) rinse and repeat.

      In short, I’m not so optimistic about the Malibu Media case consolidations, and neither should you be. Until we see the words “improper joinder,” “scheme,” or “extortion” come out of this judge’s mouth when discussing case consolidations, it looks to me as if we have a troll-friendly judge who just wants to manage these cases.

      You can see his order here.


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