UPDATE (10/10/2012): “He loved her not.” All 33 cases severed and dismissed. Congratulations to all the Cashman Law Firm, PLLC clients who have been dismissed from these lawsuits.
“He Loves Me, He Loves Me Not.”
It appears as if us attorneys are playing a “he loves me, he loves me not” game watching Judge Klausner’s orders in the Malibu Media, LLC v. John Does 1-10 (Case No. 2:12-cv-03615) case in the California Central District Court (where copyright troll Leemore Kushner’s bittorrent swarm scam cases are). Quite frankly, it looks to me as if he is doing one of two things, but it is unclear which game he is playing.
SCENARIO 1: “HE LOVES ME NOT”
In the first scenario, Judge Klausner is against the John Does, and he is very aware of the case law that has been flourishing around the federal district courts in so many states cutting down the bittorrent lawsuits at the knees of the copyright trolls. The problem is that Judge Klausner hates a copyright infringer.
So as we discussed in the “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article on 7/12/2012, the judge consolidated all of the Malibu Media, LLCcases under his control, his decision to separate out JURISDICTION and JOINDER issues was deliberate. In his charade where he ordered Leemore Kushner (the copyright troll) to explain to the court why the cases should not be dismissed for LACK OF PERSONAL JURISDICTION — we know Kushner sues California defendants in the California courts, so jurisdiction is likely proper — the Judge was pretending to cause her grief, but in secret, he was winking at her and telling her he supports her cause.
This order was EASY to comply with, and in just a few minutes time, Leemore Kushner filed the proper response explaining why jurisdiction was correct.
UPDATE: *AS OF THIS AFTERNOON,* Judge Klausner graciously accepted her explanation, and in doing so, he established case law indicating that “it is proper to sue a bittorrent defendant where the bittorrent defendant resides.”Now for joinder.
Now that Judge Klausner enjoyed Kushner’s explanation regarding PERSONAL JURISDICTION, today he asked her to explain to the court the JOINDER issue. Following this line of thought, she’ll provide him the usual “blah blah” swarm nonsense, and he’ll accept her explanation for that too. At that point, he’ll grant her motion for early discovery, and he’ll let the ISPs hand over subscriber information for the many defendants who are implicated in Leemore Kushner’s cases.
While Kushner would no doubt be thrilled at this victory, Judge Klausner will have also scored a victory in his own “judgy kind of way.” If he accepts her explanation regarding joinder, he will have effectively ruled that“in California, suing defendants together in a bittorrent swarm is PROPER, even when the defendants never knew each other, and none of the defendants uploaded or downloaded to the other (because the dates and times of the alleged infringement would be weeks if not months apart).” In other words, NO MORE SEVERANCE AND DISMISSALS for improper joinder. Now wouldn’t that be a nightmare?!? Watch out for Judge Klausner. EFF, consider an amicus brief here, because HE IS SEPARATING OUT THE ISSUES.
SCENARIO 2: “HE LOVES ME.” <– the MORE LIKELY SCENARIO.
As we discussed in our “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article, Judge Klausner made a silly mistake and sent an ORDER TO SHOW CAUSE why the cases should not be dismissed for lack of PERSONAL JURISDICTION. Pretending for a second that he read my article (I highly doubt this is the case) where I chided him for his error in confusing PERSONAL JURISDICTION and JOINDER, he accepted Leemore Kushner’s explanation of why PERSONAL JURISDICTION is proper.
Now, instead of saying, “okay, proceed with the case,” behind the scenes, Judge Klausner is getting ready to kill each and every one of the cases with one stroke of the pen. So, instead of admitting to his mistake(“who cares anyway,” he might think — “I just cost the evil troll some time and money.”), after being satisfied with Kushner’s explanation, he said, “Oh yeah, and by the way — I’m accepting your personal jurisdiction argument, but I’m not letting you subpoena the ISPs until you explain to me that JOINDER is proper. Why would you sue defendants together in the same lawsuit who were NOT INVOLVED IN THE SAME TRANSACTION OR OCCURRENCE? Silly troll.” In other words, he’s covering his oversight by making Leemore Kushner (the troll) jump through hoops, whereas in the end, he’ll take one look at her boilerplate answer as to why all the defendants belong in the same lawsuit and he’ll LAUGH HER OUT OF COURT. Severance and dismissal of each of the cases. “Go sue them individually and pay the $350 filing fee for each Doe,” he’ll say. In other words, Judge Klausner could be on your side.
MY OPINION: I wrote this quick article because at this point, it is unclear what will happen, and since many people are calling into my office asking my opinion about this particular case (and the California consolidations in general), I wanted to be explicitly clear that IT CAN GO EITHER WAY. We can only wait and see what he’ll do, and based on that, you, the putative defendant, will learn whether Leemore Kushner or the Lipscomb gang will be calling you to solicit a settlement in the near future. There is really nothing else here. He is either for the trolls, or he is for the downloaders. He can bend the law in whatever direction his judicial activist mind would like to.
So what’s you’re thought? Is it “he loves me?” or “he loves me not?”
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.
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.
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).
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 thateach 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.
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 fewattorneys’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.
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.
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.