Todd Zenger is the Utah attorney sending settlement demand letters to accused John Doe Defendants in the Utah ME2 Productions, Inc. bittorrent lawsuits (a.k.a. the Utah Mechanic: Resurrection movie lawsuits). These settlement letters from the ME2 Production attorney are asking for a settlement of $4,900, which in my opinion is absurd.
Todd E. Zenger of Kirton McConkie has been sending settlement demand letters to ME2 Utah bittorrent defendants.
We remember that back in April, Todd Zenger of Kirton | McConkie sent subpoenas to CenturyLink subscribers to expose the idenities of ME2 Utah defendants. These cases have been going on since March, and only now is he sending out settlement demand letters to Utah ME2 Productions defendants. The letters claim that the accused defendant downloaded or streamed a copy of his client’s Mechanic: Resurrection movie.
The letters have the following header:
“COPYRIGHT INFRINGEMENT OF MOVIE “Mechanic: Ressurection”
Settlement Purposes Only – Not Admissible Under FRE 408
The silly part about this is that FRE 408 refers to the Federal Rules of Evidence, Section 408 which governs settlement negotiations. This provision allows a defense attorney such as myself to openly speak about a case, even to discuss intimate details about a case without worrying that the conversation would somehow be used against our clients.
Todd Zenger appears to be attempting to make it seem as if his settlement demand letter cannot be used as evidence in the lawsuit. Perhaps he could write whatever he wants in these letters without having them come and haunt him. Wrong. The FRE 408 protection is to allow the plaintiff and defense attorneys to discuss the facts of the case without it later being used against the defendant if settlement negotiations fail. FRE 408 is not meant to provide Todd Zenger a blank check to write whatever he wants in a letter to scare an accused defendant into settling the claims against him.
So let’s back up a moment. You received a subpoena notice in April, and now in August, you are receiving settlement demand letters from Todd Zenger. Who is Todd E. Zenger?
Who is the attorney for the ME2 Utah cases?
The ‘copyright troll’ attorney in Utah who filed these cases is Todd Zenger (“Todd E. Zenger”), and he works for Kirton McConkie in Salt Lake City, Utah. Any e-mails coming from “[email protected],” or calls from his “801-328-3600” phone number (or any 801-328-XXXX phone number should cause you to be wary that you have a Utah ME2 copyright troll trying to scare you into settling with him for thousands of dollars.
Are Utah ME2 Productions, Inc. cases any different from those filed in other states?
Really, no. I have already written much about the ME2 Productions, Inc. cases, and the Utah ME2 cases are no different from the cases filed in other states. The following articles should be helpful in understanding the ME2 Utah cases as well:
Just like the other cases, the Utah ME2 Productions, Inc. cases are suing for copyright infringement based on the the illegal download of the Mechanic: Resurrection movie, starring Jason Statham and Jessica Alba. The lawsuits are all copyright infringement lawsuits filed in the Federal Courts, and each lawsuit sues for statutory damages of $150,000 (but don’t let that large number scare you, because baked into copyright infringement law is the concept of ‘minimum statutory damages’ as well).
Accused ME2 Utah-based internet users are made aware of these cases when they are sent a letter from their ISP (CenturyLink), which informs them 1) they are implicated as a “John Doe” Defendant in this case, and 2) the ISP is bound by a subpoena to share the account holder’s contact information (and relevant information about their IP address’ involvement in the case) on a certain due date unless the subscriber files an objection with the court (referring to a “motion to quash”).
Why is this article relevant now (and for the next week)?
The reason why I am writing this article is because THIS PAST WEEK, Todd Zenger has been sending settlement demand letters for his ME2 Utah-based copyright infringement lawsuits. His letters threaten that if a person does not settle, they will be named and served as a “named” defendant in this lawsuit. Most relevant, the deadlines for “payment” are right around the corner.
How did Todd Zenger get my contact information to send me this settlement demand letter?
CenturyLink complies with the subpoenas?
If you remember, CenturyLink was faced with an order signed by the federal judges in the ME2 Utah cases to hand over the contact information of the various John Doe Defendants in the ME2 Utah lawsuits. I noted on April 24th that Todd Zenger would start sending out settlement demand letters to Utah ME2 John Doe Defendants, and he has. The settlement letters explain that the accused defendants have been sued for $150,000, and that their ISP has identified them as being the downloader. That their ISP identified them as the infringer was not actually true, as the ISP only provided Todd Zenger with evidence that the accused account holder’s IP address was ‘in the room’ when bittorrent downloading was happening.
Remember — Todd Zenger’s lawsuits do not claim that each John Doe Defendant is the actual infringer, nor does he provide documentation of infringement in the form of a PCAP file that any of the Utah ME2 defendants actually committed copyright infringement or downloaded a large enough piece of the movie to be considered “substantially similar” to the copyrighted film. In the end, if the cases go that far — it would be up to the judges (and us attorneys) to inform them that Todd Zenger is not in possession of the PCAP evidence he allegedly claims to have.
Who are the federal judges assigned to the ME2 Utah Cases?
The Utah ME2 cases (thus far) are evenly spread between the following judges. I wouldn’t be surprised if moving forward, one judge, e.g., Judge Evelyn Furse will take over the other cases to have uniform decisions across the Utah ME2 cases.
Judge David Nuffer:
Utah ME2 Productions v. Does 1-23 (Case No. 2:17-cv-00198)
Utah ME2 Productions v. Does 1-12 (Case No. 2:17-cv-00224)
Utah ME2 Productions v. Does 1-29 (Case No. 2:17-cv-00190)
Judge Paul M. Warner:
Utah ME2 Productions v. Does 1-26 (Case No. 2:17-cv-00199)
Utah ME2 Productions v. Does 1-14 (Case No. 2:17-cv-00225)
Utah ME2 Productions v. Does 1-22 (Case No. 2:17-cv-00189)
Judge Evelyn J Furse:
Utah ME2 Productions v. Does 1-25 (Case No. 2:17-cv-00179)
Utah ME2 Productions v. Does 1-25 (Case No. 2:17-cv-00169)
Utah ME2 Productions v. Does 1-23 (Case No. 2:17-cv-00178)
Utah ME2 Productions v. Does 1-25 (Case No. 2:17-cv-00158)
Utah ME2 Productions v. Does 1-23 (Case No. 2:17-cv-00157)
Utah ME2 Productions v. Does 1-26 (Case No. 2:17-cv-00168)
Judge Jill N. Parrish:
Utah ME2 Productions v. Does 1-22 (Case No. 2:17-cv-00200)
Judge Dustin B. Pead:
Utah ME2 Productions v. Does 1-27 (Case No. 2:17-cv-00191)
Judge Ted Stewart:
Utah ME2 Productions v. Does 1-24 (Case No. 2:17-cv-00223)
What are my options in defending or resolving claims against me in a ME2 Utah-based case?
If you have read this far, you are likely one of the John Doe Defendants in this case, and thus here are your options on how our Cashman Law Firm, PLLC (or any other competent copyright litigation attorney) can help you in this case.
OPTION 1: FIGHT
In this option, your attorney would fight this case on your behalf. Since the ME2 scam has been exposed, the inherent weaknesses in Todd Zenger’s case are now well known. This option is more expensive than the other options, but it is probably the most satisfying option when you win and ask for attorney fees from ME2 Productions.
However, as I have noted in previous articles, an innocent defendant who fights the claims against him “on the merits” would only get the attorney fees back from Todd Zenger’s ME2 Productions, Inc. client if the dismissal was made “on the merits.” This means that either a judge or a jury would need to rule that copyright infringement did not occur or that this particular defendant is not guilty of copyright infringement based on the evidence. Todd Zenger is smarter than this, and thus he knows to dismiss “innocent” defendants before their attorney (me, or anyone else) files a motion for summary judgement in the court.
In sum, don’t be sold the lie that if you hire a particular attorney and pay him his fee, all the money you pay to him will be returned to you if you are dismissed from the lawsuit. This is simply not true. Attorney fees are awarded only if the dismissal is “on the merits,” (on the evidence) — not when Todd Zenger dismisses you after he realizes you did not do the download.
OPTION 2: SETTLEMENT NEGOTIATIONS
Settlement negotiations does not mean that you downloaded the movie or that you are guilty of copyright infringement. Rather, it simply means that you want to pay to have the plaintiff attorney dismiss you from the lawsuit. This option can be used by both ‘guilty’ and ‘innocent’ defendants. While I do not recommend an innocent defendant pay ANYTHING to settle the claims against him, I do not judge defendants when they choose this option.
What you should know about Todd Zenger’s lawsuits is that the ME2 Productions, Inc. Utah lawsuits are part of a larger racket or scheme by Carl Crowell of Rights Enforcement (rightsenforcement.com). If you search that website and click on “clients,” you’ll see the 50-80 movie companies who have signed on to be his client and who have (or will be) filing lawsuits in the coming months and years.
Todd Zenger has access to what other downloads the actual downloader downloaded. This information is not admissible against the accused defendant in THIS lawsuit (because it is considered “character evidence,” but nevertheless, Todd Zenger has found a way to profit off of this information.
In addition to a settlement for the Mechanic: Resurrection movie actually downloaded, if Todd Zenger sees that another movie of his “common troll” client was also downloaded, he will seek an additional settlement for that movie as well. This is important to know because for downloaders who have downloaded multiple movies listed on the RIGHTS ENFORCEMENT website, *if that downloader was caught* (which often is not the case), Todd Zenger will ask for a settlement for that additional movie title, albeit at a significantly discounted rate. This is extra cash for him and his client. If the defendant does not settle these other “unfiled claims” too, Todd Zenger threatens to file a lawsuit against the defendant for those titles too.
In short, have an attorney take care of the settlement negotiations, and better yet — have your attorney (me, or anyone else) ask Todd Zenger whether there are any other claims against you before you have your attorney open up settlement negotiations. “Settlement Factory” attorneys are likely not paying attention to this, and they will undoubtedly get blindsided by Todd Zenger’s “unfiled claims” tactic.
OPTION 3: “NO SETTLEMENT REPRESENTATION”
This is the discounted “no settlement” representation route that I discussed here. In the span of 2-3 hours, I would consult with the client, send over a letter of representation to the plaintiff attorney (to stop him from contacting the client directly). I would then draft a letter to the plaintiff explaining that my client did not do the download, and that we are not interested in anything other than a walkaway settlement, meaning that my client pays no settlement. The purpose of this representation is to put Todd Zenger on notice that my client is not the infringer he is looking for.
This strategy was the one described in Professor Sag’s “Defense Against The Dark Arts of Copyright Trolling” paper. However, that paper wrote a lot about these cases IN THEORY. IN PRACTICE, sending Todd Zenger a letter claiming that my client did not do it prompts Todd Zenger to follow-up with questions to determine who actually did the download. Clients that hire me just to write this letter for $750 for the 2-3 hours it would take to gather the facts and write the letter should be prepared to upgrade to the “Option 4” ignore route representation (below) if they don’t want to be on their own after the letter has been drafted and sent. In other words, my experience is that the “No Settlement Letter” has not been successful when dealing with Todd Zenger’s lawsuits.
OPTION 4: “IGNORE” ROUTE REPRESENTATION
The ignore route is best described as ‘playing chicken.’ I best described the “ignore” route, and how it differs from the “no settlement representation” route here. The assumption with the “ignore” route is that Todd Zenger is not yet naming and serving defendants in this case, so you would hire our Cashman Law Firm, PLLC to monitor the case for you. We would send over a letter of representation indicating that we are representing you in the case, but we would not engage in settlement negotiations.
The intended client for the ‘ignore’ route is the innocent client that wishes to have a more ‘hands on’ engagement with their case over the “no settlement” representation letter route, where their attorney is actively monitoring the case and having active discussions with the plaintiff attorney. Both ‘guilty’ and ‘non-guilty’ defendants can utilize the “ignore” route, as this option is adjustable based on the circumstances of the client. If Todd Zenger decides to start naming and serving defendants, a ‘guilty’ client would likely have me open up settlement negotiations on his behalf, whereas a non-guilty client would instruct me to not settle and adhere to the ‘ignore’ strategy. Obviously getting named and served while in this strategy would be cause to decide whether to shift strategies to the “fight” or “settle” strategy, which is fine.
There is nothing more to comment here. The “Ignore” Route Representation is a very effective strategy. It gets you an attorney who is in constant communication with the plaintiff attorney on your behalf, and the goal of this representation is to convince the plaintiff attorney that you are NOT the downloader than therefore you will not be paying a settlement. I should have called the “ignore” route the “open communication with the plaintiff attorney” route, but that would have been too wordy.
OPTION 5: ARGUE “MINIMUM STATUTORY DAMAGES” REPRESENTATION
I discussed the “argue minimum statutory damages” representation option in this article. The purpose of this option is to take the settlement negotiations away from a misbehaving plaintiff attorney. Instead of negotiating a settlement (where the plaintiff is asking for too much money), we would file an answer with the court admitting infringement, and we would then make the case for the judge to award minimum statutory damages of $750.
I am happy to share that Todd Zenger has been reasonable in any settlement negotiations I have had to have with him, so I have not needed to pull any settlements “off the table” yet for a misbehaving plaintiff attorney. So far, he is willing to work with my clients and their particular circumstances to come to an arrangement that their pocket books can handle.
The intended client for the “minimum statutory damages” representation route is a client who did the download and either does not want to go through settlement negotiations, or who wants to take settlement negotiations out of the hands of the plaintiff attorney / copyright troll and leave the damages up to the judge to decide. Obviously since we are admitting guilt in this option, it is appropriate for the client to have done the download to use this strategy.
However you decide to proceed, if I can be of assistance or answer any questions about your ME2 Utah case, please let me know.
*UPDATE (APRIL, 2017)* ME2 PRODUCTIONS INC. (FAQ) PAGE NOW UP.
*UPDATE (JULY, 2017)* SECOND WAVE OF LAWSUIT SUBPOENAS sent to CenturyLink ISP subscribers, and are due on 7/14/2017.
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