Behind The Scenes Story: Motion To Quash Online Forms

motion-to-quash-online-forms-story

Behind the scenes story of our law firm’s first motion to quash experience.

I was reviewing some of my older articles when I (in 2010) referenced a terrible-but-funny behind the scenes story that happened to one of the defense attorneys when he tried to sell motion to quash online forms. When I initially wrote the article, I did not share the story in its entirety because I was trying not to bring attention to the motion to quash online forms fiasco (and I was obviously feeling pain for the attorney to whom this happened). But now ten years later, I edited the article and wrote the details of story in its entirety there, and now here (in more detail).

I hope I have this attorney’s forgiveness in sharing this story. I kept his name out of it, and his motion to quash online forms are no longer available for sale online.

What happened in 2010 to this defense attorney and his motion to quash online forms?

QUICK SUMMARY OF WHAT HAPPENED: In 2010, a defense attorney sold motion to quash online forms for a few dollars a copy. Someone pirated the form, everyone used it, and the plaintiff attorney asked the court to sanction the defense attorney. [Click to Tweet!]

THE STORY:

[I am pasting this snippet from the original 2010 article, with a few edits.]

[We were trying to figure out what to do about the mass-bittorrent-defendant lawsuits…]

In 2010, at the request of the Electronic Frontier Foundation (EFF), a group of us attorneys were trying to figure out how to deal with the mass-bittorrent-copyright-infringement lawsuits. Specifically, we were trying to figure out what to do about the ISP Subpoena Notification Letters that the accused “John Doe” defendants received.

[ISP letters suggested subscribers should file an “objection” with the court…]

In those ISP Subpoena Notification Letters, the accused defendants were led to believe that they should file a motion to quash (or, an “objection with the court”) in order to preserve the anonymity of their identity.

[The ISP letters said (and still say) that if they filed an objection with the court, the ISP would not hand over the accused defendant’s contact information to the plaintiff attorney.]

[My approach…]

The ISP letters neglected to say (and still neglect to say) that the objection they are referring to is called a Motion to Quash.

LOOKING AT WHAT NEEDED TO HAPPEN, I REALIZED THAT FILING AN OBJECTION ALONE WOULD BE INSUFFICIENT, AND THAT THE DEFENDANT WOULD NEED TO PREVAIL IN COURT BY HAVING A JUDGE QUASH THE ISP SUBPOENA as to that John Doe Defendant.

I analyzed the motion to quash question. “That was a bad outcome waiting to happen,” I thought.

Thus, my approach was to realize that the motion to quash was a bad idea.

[…A Defense Attorney Differed, and Decided to Sell Motion to Quash Online Forms]

Another attorney’s approach [bless his heart, even today he has my utmost respect] decided to make a few bucks per defendant [in 2010, the copyright infringement lawsuits had THOUSANDS of defendants per lawsuit filing]. This attorney decided to sell a “motion to quash” package containing motion to quash online forms that his customers — accused John Doe Defendants — could download and use (e.g., for $10 per document download).

His logic was that his motion to quash online forms would make it easy for each defendant to file a motion to quash without needing to hire him as an attorney directly (saving him time and paperwork). And, because there are thousands of defendants per lawsuit, he would make “a few bucks” along the way… or else that was his plan.

behind-the-scenes-motion-to-quash-online-forms-story
Image by Stefan Keller from Pixabay

[…His plan did not work. An accused defendant bought his online form and uploaded it to the bittorrent network.]

…I will never forget the uncontrollable laughter an attorney next to me experienced when he realized that this defense attorney’s “motion to quash” package was pirated and UPLOADED TO THE BITTORRENT NETWORK.

Still rolling on the floor, “he made just seven sales, and his clients are all accused of copyright infringement. What did you expect them to do?” he said while trying to sit up and regain his composure.

[Click to Tweet This Story!]

[The end result: The defense attorney was successful in getting accused defendants to use his motion to quash online forms, but it tragically backfired…]

As a result, many accused downloaders used this form to file motions to quash in this case (the case the article was written about). The plaintiff attorneys got mad at all of the extra paperwork this caused [because there were thousands of defendants], and they asked the court to sanction the defense attorney who sold the motion to quash online forms.

IN SUMMARY.

Again, that attorney (bless his heart) had such a rocky beginning in these copyright cases, and I understand that he is no longer representing clients in bittorrent-based copyright infringement cases. However, even years later, his name is still fresh in my mind, and with the recent Strike 3 Holdings, LLC Miami-Dade cases, I still tried to send him a few clients because he was licensed to practice in Florida.

As for his motion to quash online forms — these were later adopted and modified (or supplanted) by a blogger called “DieTrollDie” in what he called the “Richard Pryor Response (RPR).”

[Please click here to Tweet this article!]

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geralt / Pixabay


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    Motion to Quash in one page (FAQ); when NOT to file a motion to quash.

    motions-to-quash-faq Motion to Quash in One Page

    What is a motion to quash, and how is it relevant in my copyright infringement lawsuit?

    What is a motion to quash in a copyright infringement lawsuit?

    motion to quash is a request for a court to render a previous decision null or invalid. In copyright infringement lawsuits, motions to quash are requests to nullify a decision made by the court allowing the plaintiff attorney to send subpoenas to the ISPs forcing them to provide the identity of an accused defendant.

    What is a motion to quash a subpoena?

    A motion to quash a subpoena is a request for the court to determine whether it has personal jurisdiction over the accused defendant. If the ISP subpoena letter recipient lives outside of the state in which the lawsuit was filed, the court will quash the subpoena and render the subpoena null and void.

    motion to quash is a request for a court to render a previous decision null or invalid. In copyright infringement lawsuits, motions to quash are requests to nullify a decision made by the court which allowed the plaintiff attorney to send subpoenas to the ISPs forcing them to provide the identity of one or more accused defendants.

    A motion to quash is the first legal term or so-called “tool” an accused defendant learns about when reading the subpoena letter sent to him by his ISP is that:

    1) He was implicated as a one of a small set of “John Doe” Defendants in a copyright infringement lawsuit.
    2) The copyright infringement lawsuit was filed by a copyright holder apparently owning the rights to a movie he clicked on or downloaded.
    3) He is being sued for $150,000 for the download of that movie.
    4) He may or may not have actually downloaded that movie.
    5) His ISP is being forced by a subpoena ordering them to turn over his true identity (along with other relevant information).

    After asking around, he learns:
    …6) There is a way to stop the ISP from handing out his contact information, and that is filing an “objection with the court.”
    7) The “objection with the court” that he would file is called a motion to quash.

    Motions to quash are not the answer, and here is why:

    A motion to quash is the first piece of “legal jargon” an accused defendant grasps onto.

    The accused defendant thinks, “I am going to quash the subpoena!”  Then the next logical thought is to search the internet for “motions to quash,” or “forms on how to file a motion to quash,” or “sample motions to quash,” etc.

    What that accused defendant receives in the search results is almost never his answer on how to file the motion to quash, but some enterprising attorney who decided that he will use this term to lure him in as a paying client for many months to come.

    Faced with the prospect of hiring an attorney to file a motion to quash for him, the accused defendant never asks, “should I file a motion to quash?”

    Have you read enough? Book Now to get help. > > >

    “Should I file a motion to quash?”

    Should I file a motion to quash a subpoena?

    Often, the answer is no. If you live outside of the state in which you were sued, your motion to quash the subpoena might succeed. But as a result of quashing the subpoena, the plaintiff attorney can file the same lawsuit in your home state.

    Obviously as an attorney I need to dance around this issue because this blog is not to be considered legal advice.  However, NO, contrary to popular thought and mob rule, it is my belief having defended “copyright troll” bittorrent-based copyright infringement cases for now OVER SEVEN YEARS that motions to quash are NOT an effective tool for stopping your ISP from handing out your information to the plaintiff attorney.

    What exactly is a motion to quash?

    Simplifying a bit, a motion to quash in the context of a bittorrent lawsuit tells the court that they do not have “PERSONAL JURISDICTION” over you.  In other words, a motion to quash informs the court that the plaintiff attorney / copyright troll filed the lawsuit against you in the *wrong federal court* (and plaintiff attorneys have been forced to reimburse the ISPs for making this mistake).

    [The actual context is that this would be a motion to quash (or nullify) the subpoena which is forcing the ISP to hand over your information.  The attack itself is on the validity of the subpoena, not the copyright troll or the plaintiff.]

    The question a judge must determine when faced with a motion to quash is “does this John Doe Defendant live in the jurisdiction or territory in which my federal court has power and control to enforce the laws over that defendant?”

    When is a motion to quash successful?

    When is a motion to quash a subpoena successful?

    A motion to quash a subpoena is successful if the accused John Doe defendant filing the motion to quash lives in a state OTHER THAN where the lawsuit was filed.  However, the dismissal will still allow the copyright holder to file a lawsuit against that same defendant in his home state.

    A motion to quash is successful if the accused John Doe defendant filing the motion to quash lives in a state OTHER THAN where the lawsuit was filed.  

    For example, an accused defendant who is living in New York, and not in California where the lawsuit was filed), then the California federal judge will sever and dismiss that defendant from the lawsuit.  

    The motion to quash the subpoena as to that John Doe Defendant will be successful, and the ISP is released from its obligation to hand over the information for that John Doe Defendant to the plaintiff attorney.

    The dismissal will be, however, “without prejudice,” meaning that the copyright holder will still have three (3) years from the alleged date of infringement to sue that defendant in the federal court of the state in which he or she lives.

    When is a motion to quash not successful?

    When is a motion to quash a subpoena not successful?

    A motion to quash a subpoena is not successful when the accused “John Doe” defendant lives in the state in which he was sued.  Here, the judge will determine that the federal court has personal jurisdiction over that defendant, and the motion to quash will be denied.

    What happens if I lose a motion to quash a subpoena?

    As a motion to quash is denied, the internet service provider (“ISP”) who initially held back that accused defendant’s contact information from the plaintiff attorney who sent the subpoena will now comply with the subpoena and will provide that defendant’s information to the plaintiff attorney.

    A motion to quash a subpoena is not successful when the accused “John Doe” defendant lives in the state in which he was sued.  Here, the judge will determine that the federal court has personal jurisdiction over that defendant, and the motion to quash will likely be denied.

    The effect of this is that as soon as a motion to quash is denied, the internet service provider (“ISP”) [who initially held back that accused defendant’s contact information from the spreadsheet of names and addresses provided to the plaintiff attorney] will now separately comply with the subpoena as to that John Doe Defendant who filed the motion to quash and lost.  

    Think of this as the ISP sending that defendant’s contact information in a FedEx package to the plaintiff attorney stating, “this is the guy who filed the motion to quash and lost.”

    Have you read enough? Book Now to get help. > > >

    Isn’t it illegal for the ISP to hand out my information?  Can I sue my ISP if they comply with the subpoena?

    Can I sue my ISP if they comply with the subpoena?

    Yes. However, there are limits on who can sue an ISP for disclosing subscriber information, and even if you win your lawsuit against your ISP, your damages are limited to $1,000.

    This is actually an interesting topic which I first researched many years ago.  The answer is that it depends on whether the federal judge in your case considers the ISP to be under the rules of the Cable Act or not.  

    You would think this is an easy answer, “yes or no, does an internet service provider fall under Title II of the Communications Act of 1934?” but judges in the bittorrent copyright infringement cases have had different opinions of this over the years.

    Unrelated to the very muddy area of under which Title of the Communication Act do ISPs fall, this issue has become relevant to our Cashman Law Firm, PLLC practice in defending bittorrent defendants.  

    The reason for this is that a cornerstone part of our strategy is not only understanding the personality and proclivities of the plaintiff attorney (will he name and serve, what are his motivations, etc.), but also to understand how each federal judge sees the validity of the bittorrent-based copyright infringement cases.  

    Judges who quote a certain set of case law (which places the ISPs in the context of being under the Cable Act) or who quote Arista Records LLC (sorry for the Wikipedia link) are usually plaintiff / copyright holder friendly.  Those that do not are more “John Doe” Defendant friendly.

    Anyway, in 2011, I once looked into suing an ISP for disclosing the identity of a John Doe Defendant, and I was hit with a wall of messy, disorganized law with inconsistent case law rulings on this topic (whether ISPs fall under the Cable Act, whether they are to be considered under Title 2 of the Communication Act, or under some other classification).  

    In short, even if I were successful, in the end, the defendant would have only had damages of $1,000, so it made no sense to fight the lawsuit (the time alone to file it would have cost the defendant the slap-on-the-wrist money he would have made from being right).  Anyway, just a fun tidbit.

    The plaintiff attorney’s response to a motion to quash

    Historically, the plaintiff attorney who sees an accused John Doe Defendant file a motion to quash will claim that the defendant lacks “STANDING” to file the motion to quash.

    Would I win a motion to quash a subpoena?

    Likely no. If you are filing a motion to quash a subpoena in a John Doe copyright infringement lawsuit, the plaintiff attorney will tell the court that you do not have STANDING to file the motion to quash. The reason is because you are filing a motion to quash before you are a named and served defendant in the lawsuit.

    He will claim that the John Doe filing the motion to quash was never named and served in the lawsuit (and might never be named and served).  

    They will point out to the court that the purpose of the “JOHN DOE” placeholder, by definition, is that this is an unnamed defendant.  In order to determine who the actual defendant-to-be-named is in the lawsuit, they need the subscriber’s identifying information to determine whether this subscriber was the downloader or not.

    [A plaintiff attorney deciding to “NAME AND SERVE” a defendant is outside the scope of this article.  Click here for more information on what to do when you are named and served.]

    As a result, federal judges sometimes buy this argument and they deny the motion to quash, or they find some other justification to deny the motion to quash.

    A quick comment about the personalities of the plaintiff attorneys who represent the copyright holders:

    Plaintiff attorneys / “copyright trolls” have a bad reputation because they have been known to incorporate their personal hurt feelings and egos into the prosecution of their client’s cases.

    The purpose of a “copyright troll” / bittorrent-based copyright infringement lawsuit is to extract as many multi-thousand dollar settlements as possible in return for the $400 filing fee their client paid to file the lawsuit.  Most of these attorneys work on a commission basis, so the time they spent “fighting” the case is court is wasted time.

    When a defendant files a motion to quash, this forces the plaintiff attorney to oppose the motion to quash.  Following most oppositions comes a hearing (which sometimes takes up the entire morning, even though the hearing itself on the motion to quash is 5 minutes long).

    Thus, any defendant who files the motion to quash ends up with a vindictive attorney who is looking to recoup that time lost in dollars and commissions.  This translates into an overly hostile or vindictive attorney who increases the settlement price to “nail” that defendant who filed the motion to quash.

    plaintiff-attorneys-response-to-motion-to-quash
    3dman_eu / Pixabay

    What happens after motion to quash?

    After a motion to quash is filed, the court will determine whether it has jurisdiction over the defendant. If the defendant wins the motion to quash, the court will sever and dismiss him from the lawsuit, and will order the subpoenas quashed for the other defendants as well.

    Instead of a motion to quash, what should the first step of defense be?

    Great question.  Rather than jumping to file a motion to quash, the accused “John Doe” defendant needs to figure out whether he actually downloaded the movie that is the subject of the lawsuit.  

    Next, whether he downloaded it or not, he needs to speak to an attorney to determine what his options are.

    Most attorneys who understand that motion to quash attempts are usually unsuccessful will instruct the client to forego filing the motion to quash, and to move right into defending the claims against the client.

    There is a long period of time in which the “John Doe” defendant remains anonymous.  During this “John Doe” phase, the anonymity of the accused John Doe Defendant is preserved.  

    Hiring an attorney at this point (before being named and served) provides you with so many more options than you might have after being named and served.  

    During this time, your plaintiff attorney has a window in which he can investigate whether each accused downloader actually downloaded the file or not; he purportedly does this in order to determine which John Doe Defendants to name and serve, and which not to name and serve.

    Really, this is the bulk of where the bittorrent-based copyright infringement lawsuits spend their time.

    During this “John Doe” phase of the lawsuit, the courts issue FRCP Rule 4(m) extensions over and over until the judge forces the plaintiff attorney to name and serve some defendants or stop wasting the court’s time.  

    During this time, an attorney defending a John Doe Defendant has the opportunity to obtain whatever evidence the plaintiff attorney has on that defendant, and he has the opportunity to explain that it was not the accused John Doe Defendant who did the download.

    If the client actually did the download, the defense attorney has other tools at his disposal (e.g., the “no settlement” route, the “ignore” route, or the minimum statutory damages strategy, if the plaintiff attorney names and serves the defendant or otherwise won’t negotiate a settlement).  

    Obviously, negotiating a settlement for a defendant who actually did the download is usually the quickest way out of the lawsuit (watch out for settlement factory attorneys and so-called defense attorneys who actually represent the copyright holders (“weretrolls”), but it perpetuates the whole copyright troll scheme.

    Have you read enough? Book Now to get help. > > >

    Why FIGHTING the case is not the best answer either (even with an innocent defendant).

    Lastly, there is always the option to “FIGHT,” or litigate and defend the claims against you, like a hero slaying a “copyright troll” dragon (I did not make up that analogy).  However, there are bad attorneys here too, because they really want you to pay them an hourly fee for the next few hundred hours.

    They’ll claim that they are defending your case because the copyright holder does not actually have evidence of copyright infringement (which is true — what they actually have is called “snapshot evidence,” which is not copyright infringement).  They will also explain that copyright law gives the prevailing party (the “winner”) the attorney fees they paid to their attorney.

    Thus, they can spend $20K-$30K on the litigation, and they’ll recoup it from the copyright troll when they win their case, right?? Wrong.

    Copyright Troll / Plaintiff Attorneys know EXACTLY WHEN to dismiss an innocent defendant to avoid having to pay attorney fees.

    The plaintiff attorneys are very aware of the attorney fees which are awarded to the winner of the lawsuit.

    Thus, they know EXACTLY WHEN to dismiss an accused defendant (usually after being named and served, right after discovery (think, depositions, interrogatories, evidence gathering, and questions under oath, etc.) once the defendant establishes that he actually did not do the download).

    This means that the plaintiff attorney deprived the wrongly accused “innocent” defendant of ALL the money and months of anguish he paid to his defense attorney.

    The defendant is dismissed, taking nothing back for his losses.  However, the defense attorney sits there fat and piggish having taken every penny the named defendant had.

    Chances are, that attorney never explained to the named defendant that such a dismissal could happen, or else the defendant may have chosen to settle early on (and the defense attorney would have made significantly fewer dollars in fees).

    Why FIGHTING based on the argument that the plaintiff attorney has no evidence is also dumb.

    This deserves to be its own post, but I’ll get straight to the point.  Representing a client who did the download based on the argument that the plaintiff attorney has no evidence is foolish, and here is why:

    Even if I were to charge a defendant only $100 to defend the claims against him (if I said pro bono or no fee), and I defended that client on the basis that the plaintiff attorney had no evidence against my client [based on the “snapshot evidence” theory]:

    *EVEN IF I AM RIGHT* (that “snapshot evidence” is insufficient to prove copyright infringement), MY OWN CLIENT WHO DOWNLOADED THE MOVIE WOULD BE THE ONLY EVIDENCE THE PLAINTIFF ATTORNEY WOULD REQUIRE TO PROVE COPYRIGHT INFRINGEMENT.

    Why?  Because after being named and served, there is something called “discovery,” where among other things (such as having a computer forensics expert check the computer for the infringing copyrighted title), my own client would be forced to answer questions under oath, AND ONE OF THOSE QUESTIONS WOULD BE, “DID YOU DOWNLOAD THE XYZ FILE USING BITTORRENT?”

    At that point, once your client admits guilt in a deposition, or otherwise under oath, there is nothing to do but to settle.  Snapshot evidence at that point becomes irrelevant to whether this defendant downloaded the film.

    As one attorney cleverly said it, I believe today on Twitter:

    “I can be the most educated, smartest, wizardly genius attorney ever to exist.  No legal argument can change the fact that my client downloaded the film.”

    Have you read enough? Book Now to get help. > > >

    IN SUM, INSTEAD OF THE MOTION TO QUASH, CONSIDER YOUR CASE.

    Thus, for someone who received notice that their ISP is handing out their information to the plaintiff attorney, don’t worry about the motion to quash.  Ask yourself whether you recognize the movie you are accused of downloading, and whether you downloaded or watched the movie without a license (e.g., with bittorrent, or with Popcorn Time, etc.).

    Whether the answer is yes or no, don’t wait.  Hire an attorney, explain your situation, and let the attorney either 1) convince the plaintiff attorney that you did not do the download or will not otherwise settle (a.k.a., the “no settlement” representation), or 2) have the attorney settle the claims against you.

    This time while you are an “anonymous” John Doe is precious to you; don’t squander it.

    Fighting (defending the claims against you in litigation) only makes sense when 1) you understand that EVERYTHING YOU PAY YOUR ATTORNEY TO DEFEND YOU WILL BE LOST, but you do not want to give in and settle the claims against you, and 2) when you want your attorney to file an answer, admit guilt, and argue $750 minimum statutory damages (when you did the download and the plaintiff attorney is unwilling to settle or negotiate fairly).

    All other times, one of the “ignore” routes or “settle” route is the more economical approach.

    CONCLUSION:

    So, based on what I just shared with you, ask yourself, “should I file a motion to quash?”

    NOTE: THIS HAS BEEN A LAWSUIT-NEUTRAL ARTICLE WRITTEN FOR THE TORRENTLAWYER UNIVERSITY.

    FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your matter, click here.  Lastly, please feel free to e-mail me at [email protected], 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.

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      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.

      Why a motion to quash might NOT be the correct approach in a Strike 3 Holdings Miami-Dade Florida Case.

      strike-3-holdings-anonymous-settlement

      Out-of-state defendants have received subpoena letters from their ISPs informing them that they have been sued by Strike 3 Holdings LLC in Miami-Dade County, Florida. It is my observation that these defendants are being misinformed by certain defense attorneys as to whether they should file a motion to quash to try to stop the ISP from sharing their information or they should immediately pay Strike 3 Holdings a settlement to prevent them from being sued for copyright infringement.

      Settlement Factory Attorneys are not Disclosing their Past Outcomes.

      The problem is that these defense attorneys are recommending that out-of-state defendants file a motion to quash. However, they ALREADY KNOW THE OUTCOME that once a motion to quash is filed, the Strike 3 Holdings LLC plaintiff attorney will send that defense attorney a letter threatening a $150,000 copyright infringement lawsuit in a FEDERAL COURT unless that accused defendant settles the claims against them for thousands of dollars.

      Have you read enough? Book Now to get help. > >

      This would not be a problem if the accused defendant WAS INFORMED UP FRONT that a settlement would be solicited (threatened) if the defense attorney filed the motion to quash in the Miami-Dade Florida County court.

      What is actually happening, however, is that defendants are not being informed of the letters being sent by Strike 3 Holdings, and the defense attorneys are FEIGNING IGNORANCE and PRETENDING NOT TO KNOW that this (a settlement and a threat to sue in the defendant’s home state) has been the result that has come from filing a motion to quash.

      In other words, someone is lying to someone, and I suspect it is [again, the settlement factory] defense attorney who is lying to their potential clients to lure them into settling the claims against them by first “selling” them on the idea of filing a motion to quash with the Florida court.

      [I could stop the article here, but let’s delve a bit deeper into this topic.]

      Why Would a Miami-Dade Strike 3 Holdings LLC Defendant Settle Now?

      WHY would someone accused as a potential defendant in [what is really a state-based Miami-Dade Florida court] Bill of Discovery case (again, NOT a copyright infringement case filed in a federal court) file a motion to quash as their [settlement factory] attorneys are luring them to do?

      Have you read enough? Book Now to get help. > >

      If they did ABSOLUTELY NOTHING (and this is obviously not legal advice), the likelihood of them being named and served as a defendant in the Florida court would be logically ZERO.

      WHY: The Strike 3 Holdings LLC Miami-Dade cases are *NOT* copyright infringement cases for $150,000, but rather, they are merely requests to disclose the identities of the accused infringers. If defendants did ABSOLUTELY NOTHING, in this Florida court they would not be facing a $150,000 copyright infringement lawsuit because copyright infringement lawsuits MUST be filed in a federal court, NOT a state court.

      Two reasons why Miami-Dade Strike 3 defendants are settling now (before a lawsuit against them is filed).

      So why would an accused Miami-Dade Strike 3 defendant settle? I’ll give this TWO answers:

      #1: Defense attorneys are luring defendants in with false promises from a “motion to quash” defense.

      ANSWER #1: The motion to quash vehicle is not providing defendants the outcome they are looking for (filing a motion to quash lures the defendant into communication with the plaintiff attorney and forces him/her to decide whether to settle the claims against him or defend against a copyright infringement lawsuit in federal court).

      Have you read enough? Book Now to get help. > >

      I have written extensively about motions to quash (a motion telling the court that they do not have personal jurisdiction over an accused defendant [and thus the court cannot proceed against that particular defendant] because that defendant does not live in the state in which he/she is sued).

      A motion to quash is “technically” the correct motion to file when the defendant is outside of Florida.

      In the Miami-Dade Florida Strike 3 Holdings LLC cases, 99% of the defendants DO NOT LIVE IN FLORIDA (I actually do not know the actual percentage, but pretty much every defendant that has called me lives outside of Florida). Thus, the Miami-Dade Florida court has NO JURISDICTION over most of these accused defendants, and thus a motion to quash would “technically” be the proper vehicle to hide the defendant’s identity from Strike 3 Holdings LLC.

      But JUST BECAUSE something (here, a “motion to quash” a subpoena) is the “right vehicle” to achieve a particular outcome (here, preventing the ISP from handing over the identity of the accused downloader) DOES NOT MEAN that by using that vehicle you will get the outcome you desire.

      Strike 3 Holdings knows the ACTUAL STATE where the defendant LIVES (and threatens to sue them there, even with a motion to quash).

      The problem is that in the process of filing the motion to quash, Strike 3 Holdings LLC “learns” the location of that defendant (they actually already know the location of the defendant through the geolocation of his/her IP address anyway), and the Strike 3 Holdings LLC attorney threatens the Florida attorney to either settle or withdraw the motion to quash OR ELSE they will file a copyright infringement lawsuit against their defendant in the US District Court (the federal court) in the state in which their client lives.

      Have you read enough? Book Now to get help. > >

      Strike 3 Holdings LLC threatens the defense attorneys to withdraw their motions to quash or face a lawsuit against their clients in their home state.

      Thus, the outcome of filing a motion to quash is that the Strike 3 Holdings LLC attorney threatens the defense attorney to settle now or else their defendant client will be sued in their home state’s federal court. *I have seen these letters* so I know first hand that this is happening.

      The Miami-Dade Florida “Pure Bill of Discovery” cases are not copyright infringement lawsuits.

      So if the end result of filing a motion to quash is that you will receive a threat from the opposing counsel, why file a motion to quash in the first place? [Again, it is not as if the plaintiff attorney will name and serve that defendant in their “Florida Bill of Discovery” case. There are practically no damages there and the Miami-Dade Florida court has no jurisdiction over most of the defendants. So what is accomplished by filing a motion to quash? In my opinion, ABSOLUTELY NOTHING.]

      Settlement Factory Attorneys are marketing their settlement outcomes by feigning that a motion to quash should be their strategy instead of the settlement they know will result by filing the motion to quash.

      Have you read enough? Book Now to get help. > >

      Unfortunately, there are Florida attorneys who have actively marketed motions to quash as the “silver-bullet” solution to these Miami-Dade Florida-based Strike 3 Holdings LLC cases. However, I do not think that this kind of marketing was the honest approach which is “in the best interest of the client,” a legal ethical attorneys need to hold by in every state… maybe not in Florida.

      Eventually a defendant who files a motion to quash at the advice of their attorney will also pay that same attorney a second fee to negotiate a settlement to settle the claims against them.

      What the defense attorneys neglect to tell their clients is that eventually the client will be forced to settle the claims against them and thus the client not only paid the Florida attorney hundreds or thousands for the motion to quash and the procedural hurdles involved in achieving the motion to quash, but they would also have to pay the attorney again to negotiate a settlement of the claims against their client to the tune of sometimes tens of thousands of dollars.

      “Playing stupid” is not an honest approach when representing a Strike 3 Holdings LLC defendant.

      Thus, I am kind of annoyed when I hear stories about the misinformation I have been hearing from Florida defense attorneys who have been deceiving their clients and then “playing stupid” when a settlement is eventually suggested [and it will be suggested].

      Have you read enough? Book Now to get help. > >

      In sum, a Strike 3 Defendant who filed a motion to quash has probably been tricked into settling the claims against them.

      So in sum, to answer the question “why would someone accused in a Miami-Dade Strike 3 Holdings LLC case settle?”

      My first answer is that they were deceived by an attorney to file a motion to quash and now they are being forced to settle the claims against them… or risk a $150,000 copyright infringement lawsuit filed against them* in a federal court in their home state. Thus, to avoid being sued, they settle.

      Why else would an accused defendant in a Miami-Dade Strike 3 Holdings LLC case settle?

      #2: Unfortunately, Strike 3 often [but not always] accurately accuses the correct internet user who downloaded their copyrighted videos.

      Have you read enough? Book Now to get help. > >

      ANSWER #2: Strike 3 Holdings LLC accurately identified the accused defendant as the one who downloaded their copyrighted titles, and to avoid a lawsuit filed in a federal court in their state, the defendant settles the claims against him out of court.

      One of the unfortunate things in the Strike 3 Holdings LLC copyright infringement cases is that Strike 3 Holdings has gotten quite good at identifying the correct defendant.

      Further, they are targeting defendants based on their demographic information where before the defendant is even targeted, they are identified [sometimes mistakenly] as someone who has deep pockets. Add together the “we got the right guy” and “he can pay us a lot of money,” they have the perfect defendant who will settle the claims against him.

      Strike 3 Holdings LLC copyright infringement lawsuits generally require the plaintiff to obtain testimony “under oath” from the defendant whether he downloaded the videos or not.

      I wish I had more to say here. There are a thousand ways to handle a copyright infringement lawsuit from the defense side of things, however, in pretty much most cases, the defendant must assume that the plaintiff attorney will put the him or her under oath (meaning, they will take his testimony) and ask whether he has downloaded, streamed, or viewed adult films using bittorrent.

      Have you read enough? Book Now to get help. > >

      As soon as the defendant answers “yes,” they have just compromised their chances of winning the copyright infringement lawsuit.

      Remember: The burden of proof in a civil copyright infringement lawsuit is “PREPONDERANCE OF THE EVIDENCE,” meaning “more likely than not,” or “51%.”

      This is a much lower burden of proof than “CLEAR AND CONVINCING” or “BEYOND A REASONABLE DOUBT” as you would see in criminal cases.

      Thus, knowing that the plaintiff attorney will take the testimony from the defendant if he fights back, most defendants would rather opt to settle the claims against them than expose themselves to a deposition where they might end up giving testimony which kills their defense.

      So, because of these uncomfortable truths, the Miami-Dade Florida based Strike 3 Holdings LLC lawsuits continue in full force.

      OBSERVATION: Strike 3 Holdings LLC is still filing more Miami-Dade Florida based “Pure Bill of Discovery” Lawsuits.

      Have you read enough? Book Now to get help. > >

      Since I wrote the last article three weeks ago (and the one before than in October, 2019), I have observed that there were four more cases filed in the Miami-Dade Florida court (and within each of the four lawsuits is potentially a hundred or more defendants — I know this because the complaints implicate hundreds of defendants, each one accused of being “ONE UNKNOWN INFRINGER” having ONE IP ADDRESS).

      Thus, for the cost of filing ONE federal court lawsuit, they are exposing the names of potentially a hundred or more defendants who will pay to settle the claims against them.

      Current List of Strike 3 Holdings LLC Miami Dade Florida-based lawsuits.

      Here is the current (updated) list of Strike 3 Holdings LLC Miami-Dade Florida lawsuits:

      STRIKE 3 HOLDINGS, LLC v. UNKNOWN INFRINGERS LISTED ON EXHIBIT 1

      Have you read enough? Book Now to get help. > >

      Local Case Numbers: 2019-027829-CC-05, 2019-027599-CC-05, 2019-026368-CC-05, 2019-026371-CC-05, 2019-025653-CC-05, 2019-025655-CC-05, 2019-025662-CC-05, 2019-024463-CC-05, 2019-024467-CC-05, 2019-024647-CC-05, 2020-001616-CC-05, 2020-001652-CC-05, 2019-032919-CC-05, 2019-032825-CC-05, 2019-032439-CC-05, 2019-032122-CC-05, 2019-031035-CC-05, 2019-030496-CC-05, 2019-030040-CC-05, 2019-028802-CC-05, 2019-028412-CC-05, and 2019-028410-CC-05.

      State Case Numbers: 132019CC027829000005, 132019CC027599000005, 132019CC026368000005, 132019CC026371000005, 132019CC025653000005, 132019CC025655000005, 132019CC025662000005, 132019CC024463000005, 132019CC024467000005, 132019CC024647000005, 132020CC001616000005, 132020CC001652000005, 132019CC032919000005, 132019CC032825000005, 132019CC032439000005, 132019CC032122000005, 132019CC031035000005, 132019CC030496000005, 132019CC030040000005, 132019CC028802000005, 132019CC028412000005, and 132019CC028410000005.

      *2/10/2020 UPDATE: Still, no Florida Miami-Dade judge has stopped these cases, and Strike 3 Holdings, LLC keeps filing. Here are additional cases that have been filed in the last three weeks:

      Have you read enough? Book Now to get help. > >

      NEW Local Case Numbers: 2020-002968-CC-05, 2020-002021-CC-05, 2020-002024-CC-05, 2020-002019-CC-05.

      NEW State Case Numbers: 132020CC002968000005, 132020CC002021000005, 132020CC002024000005, 132020CC002019000005.


      [CONTACT AN ATTORNEY: If you have a question for an attorney about the Miami-Dade Florida-based Strike 3 Holdings, LLC cases and my experiences with them or what the defense attorneys are doing, you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your Strike 3 Holdings, LLC case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

      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.

        How Paul Beik names and serves Malibu Media LLC defendants.

        malibu-media-case-consolidations

        Paul Beik (Paul S. Beik of the Beik Law Firm PLLC) is a Texas-based plaintiff attorney who has “served” many defendants in Texas lawsuits for his Malibu Media LLC client (“served” as in someone knocking on a defendant’s door in a bittorrent copyright litigation lawsuit and handing the former John Doe Defendant a copy of the complaint; not “served” as in “thousands served” in a McDonald’s hamburger way). [Sorry for the play on words — that came out when editing this article.]

        Paul Beik has been naming and serving Malibu Media LLC v. John Doe defendants since 3/28/2018 (or at least 3/28/18 was the first time I contacted him before having a client served; prior to this, his predecessors Andrew Kumar and Michael Lowenberg of the Lowenberg Law Firm PLLC filed Malibu lawsuits in TX since 10/27/2016), but unlike Beik’s cases, their John Doe defendants were not regularly named and served.

        More generally, Malibu Media LLC has likely filed over ten thousand copyright infringement lawsuits against anonymous John Doe defendants since 2012 (I stopped counting in 2016, when Malibu temporarily stopped filing lawsuits, and even then, there were already 6,000+ cases filed across the US).

        Have you read enough? Book Now to get help. > > >

        Prior to Paul Beik taking over as Texas local counsel for Malibu Media LLC, while some Texas John Doe defendants were named and served here and there, most of them historically were never served. The reason for this is that Malibu Media LLC’s general counsel (currently represented by the Lomnitzer Law Firm in Florida) always let the local copyright attorneys (here, Paul Beik) decide how far into litigation they are willing to go — specifically whether they are willing to have the John Doe Defendants named and served.

        How Malibu Media LLC lets their attorneys “grow” on the job.

        [Again, the header is not to be taken out of context given the subject matter of the Malibu Media LLC adult film cases.]

        Malibu Media LLC’s general counsel often hires lawyers in each state who know federal procedure [but who do not necessarily know any copyright law]. They often let that attorney “learn on the job” by following instructions, templates, and scripts I believe are provided to every new Malibu Media LLC local counsel. I have referred to these new plaintiff attorneys in the past as “fresh meat,” because the filings in every Malibu Media LLC case look exactly the same as the filings I have seen in thousands of Malibu cases over the years filed in federal courts in California, New York, Michigan, and across the US.

        I have always called Malibu Media LLC cases “a settlement extortion scheme.” For years (prior to Paul Beik taking over the Texas Malibu Media cases, Malibu Media LLC cases were filed against anonymous John Doe Defendants, and they were dismissed as John Does (in my opinion, because of the squeamishness of previous Texas-based Malibu Media LLC attorneys to name and serve defendants and move forward against them in litigation). Not so with Paul Beik of Beik Law Firm PLLC.

        Paul Beik has served Malibu Media LLC Texas defendants in the US District ,Court for the Southern District of Texas with regularity. In filing the lawsuit, he uses the same (identical) wording that other Malibu Media LLC cases use in other federal courts making an attorney who is not paying attention think he is inexperienced [that link (above) merely goes to a reference to “settlement factories,” described below]. Even if you look at Paul Beik’s case dockets, his Texas-based Malibu Media LLC cases appear to be nearly identical to every other Malibu Media LLC case filed across the US.

        However, unlike many other “copyright troll” plaintiff attorneys, Paul Beik is not afraid to name and serve a defendant.

        Have you read enough? Book Now to get help. > > >

        Federal Rules of Civil Procedure on naming and serving a defendant (the 90-day rule).

        The reason this is relevant is because 90 days after a complaint is filed in a federal court, FRCP Rule 4(m) gives a plaintiff attorney (here, Paul Beik) 90 days to amend the complaint and “name and serve” a John Doe defendant.

        Beik could also dismiss the case before the 90 days have elapsed [which almost never happens], or he can ask the court for an extension of time to have that Texas defendant named and served [that happens].

        The point here is that Paul Beik is under a procedural deadline to name and serve a defendant. Thus, whatever so-called “anonymous” settlement he can pull from the Malibu Media LLC John Doe defendant before the 90 days have elapsed, his client wants him to take.

        Unfortunately for some John Doe Defendants, when they do not respond to his requests for settlement or they do not hire an attorney to represent them in this case, as a matter of procedure, instead of dismissing the case without prejudice and saying to the accused defendant “just kidding,” Paul Beik moves forward with litigation and has that Texas defendant named and served .

        This is relevant because in litigation, there will become a time where the question of “whether the named and served Texas defendant actually downloaded Malibu Media’s copyrighted titles” becomes relevant. This happens in a deposition, where the defendant is placed under oath in front of a court reporter and the plaintiff attorney takes his testimony. *THIS* is where Paul Beik succeeds in forcing a settlement from a named and served Texas defendant who did not previously settle the claims against him.

        NOTE: *THIS* (deposition) is also the moment where the named and served Texas John Doe Defendant is dismissed from liability [to avoid having his client pay the defendant’s attorney fees].

        Have you read enough? Book Now to get help. > > >

        Paul Beik Malibu Media Texas settlement scheme
        Perlinator / Pixabay

        HOW PAUL BEIK HAS MALIBU MEDIA LLC DEFENDANTS SERVED.

        The complaint and request to disclose identity of subscriber.

        First, Beik files the complaint alleging copyright infringement of Malibu Media’s copyright adult film titles. He files the lawsuit against ONE anonymous “John Doe” defendant (who lives in the Texas state, so there is no motion to quash to file [the court has personal jurisdiction over the defendant]). Beik mentions to the court that he does not yet know the identity of the defendant, and he asks the court to provide him an order to command the Comcast ISP (or AT&T ISP) to disclose the identity of the alleged downloader of Malibu Media LLC’s copyrighted titles.

        Because courts are friendly to copyright holders, the Texas judges grant Paul Beik his request and order the ISPs to provide him the information that he needs.

        Have you read enough? Book Now to get help. > > >

        The subpoena sent to the ISP ordering it to reveal the subscriber’s identity.

        Paul Beik then forwards a subpoena to the Comcast (or whichever) ISP, ordering the ISP to turn over the identity (and whatever else is approved by the court) of the account holder who was assigned the IP address at the time that the downloading of Malibu Media LLC’s adult titles took place.

        The ISP’s duty to protect their customer and steps they take.

        The ISPs are under a duty [an order, signed by the federal judge] to hand over this information to the plaintiff attorney (here, Paul Beik). To protect their customer, the ISP sends over [what I call] an ISP Subpoena Letter informing the Texas account holder that he has been implicated as a defendant in the Malibu Media LLC lawsuit.

        The ISP Subpoena Letter also informs the account subscriber that if they wish to stop them from handing over their information, they may file a motion to quash (they call it “an objection with the court”). A motion to quash, if successful, would prevent the ISP from handing over the account holder’s information to Beik Law Firm PLLC (the plaintiff attorney — Paul Beik’s office — NOT to the court).

        You can read more into motions to quash here (this isn’t the place to discuss this topic), but the jist of a motion to quash is that it tells the US District Court that it does not have “personal jurisdiction” over the defendant. This primarily occurs if the defendant lives outside of the state in which they were sued.

        Have you read enough? Book Now to get help. > > >

        Paul Beik is dangerous to John Doe defendants because he has them named and served.

        Unlike many other Malibu Media LLC attorneys who are running a settlement extortion scheme (“settle whether you did it or not”), Paul Beik actually takes the additional step of having the defendant who did not settle the claims again him named and served.

        In other words, if that Texas-based John Doe Defendant does not settle the claims against him or her, Paul Beik will amend the complaint and will add the actual ISP account subscriber’s name and address to the complaint. This forces the now “named and served” defendant into litigation, where they have 21 days to file an answer with the court or face a default judgement against them.

        This is where Paul Beik takes the Malibu Media LLC cases (which for years, I considered nothing more than a “bluff”) one step further than many others — he actually has his Texas John Doe Defendants named and served, forcing them into litigation whether they like it or not.

        Now obviously the purpose of this article was to identify Paul Beik as a Malibu Media LLC attorney, and to note that he DOES name and serve defendants. “Check.” This is not to say that he will not settle a case after a defendant is named and served — he will still settle a case, as this is the ultimate reason he has named and served the defendant [a settlement is more valuable to Malibu Media LLC than a judgement of $150,000 which they will never collect]. However, I simply want to point out that Paul Beik does name and serve defendants.

        Have you read enough? Book Now to get help. > > >

        A quick note about out-of-state settlement factory attorneys.

        Lastly, there are many out-of-state attorneys who are not licensed in Texas who are actively advertising and are trying to take as many Malibu Media LLC clients from across the US as they can. Among them are a few [what I call] “settlement factories” (settlement factories are attorneys who run a volume-based business; they try to scare every defendant into settling the claims against them, and in my opinion they cause far more problems for the defendant than they solve).

        There used to be only a small handful of attorneys who I considered settlement factories, but unfortunately, with the younger crowd graduating law school and joining the ranks, I am seeing more and more inexperienced lawyers throw up a shingle and a blog and act as if they are a legitimate law practice, when really they are just another “settlement factory.” I have even had confrontational experiences with these attorneys — many of whom did not understand copyright law at all, and one who even thought these cases were criminal. “Umm, no.”

        In short, if you are sued by Paul Beik, I strongly recommend that you hire a Texas-licensed attorney to handle your case. I don’t care if you hire my Cashman Law Firm PLLC (often I don’t even take clients, and here is why) or if you hire another Texas attorney who is competent to work in these cases (if I cannot represent you, I will happily refer you to an attorney in Texas who can assist you).

        While it is impossible to know which Texas-based Malibu Media LLC John Doe Defendants will be named and served, based on my knowledge of Paul Beik and his timing, I will do my best to list cases which at the moment are at risk of being named and served. TBA.

        Have you read enough? Book Now to get help. > > >


        [CONTACT AN ATTORNEY: If you have a question for an attorney about the Texas Malibu Media LLC cases and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your Malibu Media LLC case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

        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.

          The life of a subpoena, and at what point you are no longer anonymous.

          motions-to-quash-faq Motion to Quash in One Page

          TIMELINE: ISP SUBPOENAS AND ANONYMITY

          Any “copyright troll” bittorrent-based copyright infringement lawsuit really revolves around the subpoena which moves from the court to the accused John Doe Defendants.  Tracking a subpoena can help an accused defendant understand the timelines of when they can fight, when they can settle, when they can ignore, and whether they are anonymous or not at each step.

          A Subpoena is first introduced to the court for approval.

          A subpoena is first introduced to the court when the plaintiff attorney files the lawsuit and asks the court for permission to obtain the identities of the various internet users accused of downloading the copyright holder’s movie or copyrighted work.

          The Subpoena, once approved by the court, is sent to the ISP.

          The federal judge approves the subpoena (usually by rubber stamp), and the subpoenas are then sent to the “abuse” department of the various ISPs (e.g., AT&T U-verse, COX Communications, Comcast, etc.).  These ISPs in receipt of the subpoena are ordered to hand over the accused subscriber’s information to the plaintiff attorney.  They send a notice to the account holder that a subpoena has been received, and that they are under a duty to comply with the subpoena by a certain date unless the account holder files a Motion to Quash the subpoena before the arbitrary deadline they set (usually the deadline is 30 days from the notice sent to the subscriber).

          The ISP forwards the Subpoena to the accused account holder giving him a chance to file an objection with the court.

          You (the account holder) receive the notice containing the subpoena, and you learn that you are implicated as a “John Doe” (an unnamed defendant) in the Copyright Holder Corporate Entity v. Does lawsuit.  Here, you learn that you can supposedly stop the ISP from handing out your information to the plaintiff attorney by filing an objection with the court, a.k.a. a “Motion to Quash.”  At this point, you are still anonymous.

          The ISP complies with the Subpoena and hands over your contact information to the plaintiff attorney.

          Assuming you do not file the Motion to Quash (there are many articles on this website explaining why you might not do so), the 30-day deadline set by your ISP will lapse, and your ISP will comply with the subpoena.  They turn over your information to the PLAINTIFF ATTORNEY (but not to the court or anyone else).  You are still anonymous.

          Have you read enough? Book Now to get help. > > >

          The exact moment your anonymity expires.

          At this point, the life of the subpoena is over, as it has served its purpose and the plaintiff attorney is in receipt of your contact information (and whatever other information your ISP was forced to hand over to it).  At this point, you are a “John Doe” defendant in the lawsuit, and only your plaintiff attorney knows your real identity.  YOU ARE STILL ANONYMOUS at this point (as to the court and the world, as the plaintiff attorney is not going to share your information unless he decides to name and serve you as a defendant in the lawsuit).

          Your anonymity expires once the plaintiff attorney realizes that he or she cannot get a settlement from you, and based on their evidence that you are the downloader of their client’s copyrighted movie, they file an amended complaint with the court with your name as a defendant, and they serve you with a copy of the complaint.  At this point, you have been “named and served,” and you are no longer anonymous.  At this point, you need to decide whether it makes more sense to stand and defend against the claims against you (consider the attorney fees issue), or to negotiate a settlement and amicably step away from the lawsuit.

          NOTE: If you choose to fight, be aware of Prof. Matthew Sag’s paper entitled “Defense Against the Dark Arts of Copyright Trolling,” and the considerations surrounding using what are otherwise “valid” defenses to copyright infringement which likely DO apply to your case.

          [CONTACT AN ATTORNEY: If you have a question for an attorney about your lawsuit and options on how to proceed, you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

            ISP Subpoena Timeline & Anonymity Timeline
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