DGW finds troll-friendly judge in their THIRD WORLD MEDIA, LLC case.

I am getting phone calls about “scare” letters that plaintiff attorneys Dunlap Grubb & Weaver, PLLC have been sending out using the name “Media Law Group” on their letterhead.  Again, this is Dunlap Grubb & Weaver, PLLC (particularly in this case, Ellis Bennett).

There is no overly exciting news here — the case for which these letters are now being sent out is “Third World Media, LLC v. Does 1-4,536” (Case No. 1:11-cv-00059) filed on 1/10/2011 in the U.S. District Court for the District of Columbia.  The number of the Doe Defendants has changed, as the case name used to be “Third World Media, LLC v. Does 1-4,171.”  Quite frankly, this is just another “me too” production company trying to make a few bucks shaking down people who allegedly downloaded their adult films.

What is noteworthy in this case is how it was literally ignored by Judge Richard Roberts for almost 10 months before it was thrown over his shoulder on 11/15/2011 to Magistrate Judge Deborah Robinson for her to deal with it.  During this time, Judge Roberts never replied to any of the motions, and he completely ignored the plaintiff attorney’s request to serve subpoenas on the ISPs in order to gain access to the John Doe Defendant’s contact information.

However, as soon as Judge Robinson took over the case, no doubt champagne bottles were brought out and the bubbly started flowing.  “Cheers!” probably came from the halls of Dunlap Grubb & Weaver, PLLC’s office.  Why? They found themselves a patsy judge.

Immediately after receiving the case, Judge Robinson not only rubber-stamped the order essentially handing 4,000 subscribers into the hands of Dunlap Grubb & Weaver, PLLC (one of the original copyright trolls from the mega cases of 2010 and 2011), but she gave them more leeway than I have ever seen a judge give a copyright troll.  I have seen orders giving plaintiffs 120 days (in accordance with Rule 4(m) of the Federal Rules of Civil Procedure, which gives a plaintiffs 120 days to name and serve or dismiss [John Doe] defendants), however, in her order, she gave them 270 DAYS!

Quite frankly, I’m not one to call a judge corrupt, or to claim that a judge is in the pocket of one party or another, but giving a copyright troll 270 days (where the rules allow for a MAXIMUM of 120 days) seems fishy to me.

But then, it doesn’t stop there.  Immediately after her 11/29/2011 order giving the plaintiff attorneys carte blanche for the next 9 MONTHS (FYI, that’s until the end of August, 2012), on 12/6/2011 the plaintiff attorneys amended their complaint adding new defendants (consequently adding 110 pages of IP addresses to the docket).

The funny thing, however, is that none of us have heard a PEEP from defendants, which indicates to me that the ISPs they targeted have given them a hard time and have not released the contact information of the accused Doe Defendants… until now.

As of this week, a number of defendants have started calling our office about this case.  Apparently the ISPs have begun complying with the subpoenas.  Let the games begin!

Which will be the bittorrent lawsuits of tomorrow?

With the larger cases from Dunlap Grubb & Weaver, PLLC heading off into the bittorrent litigation graveyard, the plaintiff attorneys have not yet learned their lesson about the dangers of filing John Doe lawsuits with thousands of Does sued together. Below are just a few cases filed by the same plaintiff attorneys — newer cases — which thus far have not achieved much traction. No doubt we’ll be seeing more of these in the coming months.

First and foremost, Ira Siegel’s new case, Digital Sin, Inc. v. Does 1-5,698 (Case No. 4:11-cv-04397-LB) filed in the US District Court for the Northern District of California. Apparently it did not occur to his client that suing 5,698 defendants is the easiest way for a case to achieve scrutiny.

Also by Ira Siegel is his SRO Pictures, Inc v. Does 1-3036 (Case No. 5:11-cv-04220-PSG) case, his Discount Video Center, Inc. v. Does 1-5,041 (Case No. 5:11-cv-02694-PSG) case, his Zero Tolerance Entertainment, Inc. v. Does 1-2,943 (Case No. 3:11-cv-02767-EDL) case, each filed in the same California court as Digital Sin.

We are already hearing from Doe Defendants on Ira Siegel’s Third Degree Films, Inc. v. Does 1-3,577 (Case No. 4:11-cv-02768-LB) and most notorious, his Patrick Collins, Inc. v. Does 1-2590 (Case No. 3:11-cv-02766-MEJ) case, also in the same California court.

Next, filed by Thomas Dunlap himself (of Dunlap Grubb & Weaver, PLLC) is CineTel Films, Inc. dba Family of the Year Productions, LLC v. Does 1-1,052 (Case No. 8:11-cv-02438-JFM) filed in the US District Court for the District of Maryland. This one should be fun. This same plaintiff has had Dunlap sue in his home US District Court for the District of Columbia, the Cinetel Films Inc. et al v. Does 1-1,951 (Case No. 1:11-cv-01334-RLW) case. Same plaintiff, different jurisdiction. My guess is that Ellis Bennett or Nicholas Kurtz will be the on the paperwork for these since they have to date handled Dunlap Grubb & Weaver’s older cases.

In the District of Columbia (where most of Dunlap Grubb & Weaver’s cases are filed,) to everyone’s surprise is the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274-RBW) case, apparently using Timothy Anderson of Anderson & Associates, PC as the local counsel. The funny thing about this one is that AF Holdings, LLC is John Steele of Steele Hansmeier PLLC’s clients (where Steele Hansmeier has sued a bunch of AF Holdings, LLC v. Does smaller cases across the country already), so this Tim Anderson guy is probably another one of Steele’s local counsel puppets (sorry Tim).

Then, there is Evan Stone’s FUNimation Entertainment v. Does 1-1,427 (Case No. 2:11-cv-00269-DF) filed in the US District Court for the Eastern District of Texas. I haven’t heard much about this case yet, but Evan Stone is the attorney who was the plaintiff attorney over the LFP Internet Group, LLC v. Does [LFP a.k.a. “Larry Flint Productions”] lawsuit that had over 6,000 defendants in total dismissed last year. Maybe he’s back in the game with a case that won’t be immediately dismissed.

Last, but not least, there is a set of triplet lawsuits filed by an unknown McDaniel Law Firm plaintiff (probably a copycat attorney who has watched these bittorrent cases develop and now has decided to try his hand and sue) in the US District Court for the District of New Jersey. Both of them go by the same name, Baseprotect UG, Ltd. v. John Does 1-X (Case No. 2:11-cv-03621, Case No. 2:11-cv-02021, and Case No. 2:10-cv-06806 respectively). The deceptive part is that the “Does 1-X” title appears to suggest that there are just a few defendants, so the case is hoped to stay under the radar. Nope. In one case, I believe there are over 300+ John Doe defendants implicated, and in the other case, I believe there are over 1,500 John Doe defendants. Funny enough, I hear that Baseprotect does not even own the Polish copyrights they assert, and that they have merely questionably acquired a limited right to sue on these copyrights. This will be fun to watch.

So in short, with the demise of the famous DC cases (Maverick Entertainment, Call of the Wild, and now West Coast Productions, Inc.), there are a whole new generation of cases who hope to achieve exactly the same purpose as their predecessors. Make a profit before getting dismissed into oblivion.

West Coast Productions, Inc. Case is DEAD.

With the flick of a wrist and the power a pen, the West Coast Productions, Inc. v. Does 1-5,829 case is dead.

I don’t know whether I should be saying congratulations to the Cashman Law Firm, PLLC clients who are now dismissed from the case, whether I should be writing an obituary on what was one of the longest-lasting monster bittorrent cases, or whether I should be skeptical and cautious at such a simple and eloquent end to such a violent case.

This case had everything wrong with it. Improper joinder, improper jurisdiction, even the content it accused internet users of downloading was distasteful. “I don’t like ugly biker chicks, I’d never download their films,” a Doe Defendant once told me.

On top of everything wrong with it, this case had baggage, namely West Virginia’s West Coast Productions, Inc. lawsuits with Kenneth Ford at the helm, all of which went bust last year.

But it wasn’t jurisdiction or joinder which caused to downfall of this case; it was failing to name and serve defendants within the 120 day limits as dictated by the Federal Rules of Civil Procedure, Rule 4(m). Judge Kollar-Kotelly, realizing that the plaintiff attorneys were using the courts to extract settlement agreements, decided to implement and enforce this rule forcing the case to shut down.

The last stab to the case was a September 1st, 2011 deadline where the plaintiff attorneys were ordered to name and serve defendants, and to report to the court by the end of today who they have named and served.

I was sure that they would at least name the John Doe Defendants who lived in the District of Columbia, and they would in turn ask the court for more time. But instead, they named NOBODY. They merely packed up their bags, closed up shop, and dismissed the case.

What does this mean? Could it mean that the plaintiff attorneys do not have the resources, the time, the patience, or the energy to take clients to trial? Or, did West Coast Productions, Inc. say “enough is enough; we’ve made enough money in settlements — let’s close up shop.” It cannot be that easy.

Here is my take. Before they sue each and every one of the defendants in smaller groups in the correct courts — a tactic that Steele Hansmeier, PLLC and other plaintiff attorneys have caught onto — they had to kill the big bad monster of a case. After all, it would be bad to sue the same defendant in two cases at the same time for the same alleged act of infringement.

So for now, those of you who were defendants in this case, you are no longer defendants, and I congratulate you on your victory. I would whip out the champagne bottles and celebrate, but be very aware that there is one more West Coast Productions, Inc. v. Does case lurking in this same DC court. West Coast Productions, Inc. (1:11-cv-00055), our case’s little brother is still alive and well. While Judge Kollar-Kotelly has taken the sword to slay the extortion machine that was our West Coast Productions, Inc. case, so far, Magistrate Judge John Facciola has been merely pushing paper on the other West Coast Productions, Inc. case.  Really, nothing of substance has been going on there.

What about the letters and the phone calls you all have been receiving?  Should you ignore them?  Probably not.  For the most part, the plaintiff attorneys at Dunlap Grubb & Weaver, PLLC have your contact information, and they plan to use it.  Expect multiple “scare” letters saying, “we plan to sue you unless you pay us $3,500 (or more) by XYZ date.”  Then expect to get additional letters for higher amounts.  As far as whether this is a bluff or not, it is best to be prudent and to watch where they are suing in order to determine where they have hired local counsel.  For example, if you are watching the copyright cases on RFC Express (http://www.rfcexpress.com), and you see that one of Dunlap Grubb & Weaver’s cases — whether West Coast Productions, Maverick Entertainment Group, Call of the Wild, etc. etc. — has been filed in your home court, that should be a red flag that you might be sued yourself.  Lawyering up (e.g., hiring an attorney) at this point if you have not already done so, or even proactively settling might be a wise option.  However, if you see no lawsuits of theirs in your state, my opinion is that there is no need to feed their war chest with your settlement dollars.

I have attached the dismissal letter below for your viewing pleasure. Simple. Voilà!

[scribd id=64331514 key=key-215wj3misks3ksdu8ytl mode=list]

What to do about these smaller Doe bittorrent cases?

The bittorrent cases are speeding up, both in number of cases filed, and in the issues relating to the cases. Judges are smartening up to what is going on, and I am seeing the smaller “Does 1-23” cases ripped to shreds in the courts. But, because they are so small, the activities in each case are falling below the radar.

These smaller cases are now filed in the multiple courts across the country — the correct courts — with the John Doe Defendants often living in the states in which they are sued. Thus, there are no more motion to quash issues, and there are no more “wrong jurisdiction” arguments.

However, while NEARLY ALL the smaller lawsuits still have “improper joinder” issues (meaning, suing Does together in the same lawsuit who did not participate in the same swarm; thus, they did not take part in the same transaction at the same time), THE CASES ARE SIMPLY NOT GOING TO TRIAL and thus defendants are not getting the chance to contest improper joinder.

The problem with these smaller cases is that 1) the settlement amounts are elevated, and 2) the risk of being named as a defendant goes through the roof because all that is required to name defendants in these smaller cases is that the plaintiff merely needs to amend the complaint against a particular Doe (thus the case will change from Patrick Collins, Inc. v. Does 1-30 to Patrick Collins v. “Elliot Hendel” and Does 1-29 [this name is merely fictitious]), and then someone comes knocking at Elliot’s home and serves him a copy of the complaint. At that point if he has not already done so [and he should have hired an attorney immediately upon having notice from his ISP that he was one of the Does in this case], he has to hire an attorney to respond within 20 days with his answer and his counterclaims, or he will default (which means the court can enter a default judgment against him for the full $150,000).

However, the BIG SECRET is that for the most part, these defendants do NOT get named as defendants, and they remain anonymous as far as what is visible from the court’s eyes. Instead, the plaintiff attorneys scare the b’jeebies out of them and cause them in some cases to sign [in many cases] an “I’m guilty, I’m sorry, I’ll never do it again” settlement agreement. The end result is that they end up paying significantly more than they would have if they merely called an attorney and had that attorney negotiate on their behalf. To make matters worse, defendants do not realize that there are really three-tiers of settlement prices (not two) — 1) the plaintiff attorney’s asking price (the “pay us $X by this date or else we’ll name you as a defendant in this case” amount), 2) defendant-negotiated price, and 3) attorney-negotiated price.

When the defendant tries to negotiate his settlement on his own, the likelihood is that he will probably say something incriminating about his case. (For example, not knowing the case law, he may say, “it wasn’t me; it was probably my son — he uses the internet all the time; I keep telling him not to watch that porn,” or “I let my neighbor / son / guest / roommate use my internet,” or “I didn’t realize it was illegal to download — I thought it was only illegal to upload!” etc.) The result is that the plaintiff says, “thank you for telling me you are guilty; the offer is now off the table and I will see you in court <click>,” only to call back shortly afterwards and, in the graces of his heart, he will offer a new settlement amount which is nearly double the asking price of the original settlement amount.

It is not only important to have an attorney negotiate your settlement amount 1) because he can, and 2) he won’t incriminate you while you would likely incriminate yourself, but also, the attorney knows the case law [which is not so obvious], and he knows what to put into a settlement agreement so that the settling defendant does not later get sued for the same claim, attorney fees, etc. It kills me to see so many people turn around and try to settle on their own without reading what they are agreeing to. What burns me more is when attorneys don’t read the contracts they have their clients agree to.

…In short, the plaintiff attorney mops up the floor with the defendants, and many of the defendants (if not most of them) turn over and lay dead while they capitulate and settle their cases. Had they lawyered-up, they would have known how to protect themselves. Better yet, their lawyer would have stepped in their shoes and the plaintiff attorneys would not have even been allowed to contact the defendants in the first place. No letters, no scare tactics; no threats.

Everything being said, one thing that most don’t even bother to find out is who exactly their plaintiff attorneys are. In more cases than not, the plaintiff attorney is merely a guy in a room with a laptop and a phone. Sometimes there is a second lawyer guy in the room making phone calls scaring the defendants into settling — a two-man show. …Do you really think this one or two-man show actually has the ability to sue more than just a few defendants, and if you defendants lawyered-up, do you think the plaintiff attorneys would have the time to name each and every one of you? AND if they named each and every one of you (which is literally impossible because to serve each one of you with service of process would be nearly impossible to track and there are bound to be significant errors), do you think they would have time to respond to each and every one our discovery requests?

As your attorney, when I defend you, I have a duty to properly protect your interests. That means that us attorneys must establish evidence that calls into question their so-called experts’ methods in collecting IP addresses (see here for just a taste). We need to call into question their methods of suing multiple Does in one lawsuit. We need to fight them procedurally with motions to dismiss, motions for summary judgement, and in some cases, motions for sanctions.

Do you think that the one-man show attorney and their underlying plaintiff (too often, the porn production company) can handle the hours of deposition time that EACH OF YOU DEFENDANT would be entitled to? What about their so-called experts? Do you think they have the time to answer all our in-person depositions for each defendant? What about our interrogatories? What about our other discovery motions? Do you really think the one-man show — the attorney guy in the room with a laptop — has the time to spend going after each one of you when he can instead go after the unrepresented defendants who roll over and settle their cases?

To make these cases merely insulting, these plaintiff attorneys have been hiring no-name local-counsel attorneys to file their cases on their behalf (no disrespect to any of them; I understand they are doing it solely so that they can make a commission off of those who settle). As far as I understand, the local counsel often know absolutely NOTHING about these cases, but they talk a big game and then sheepishly refer you to someone else — an “in-house” negotiator, or the attorney behind the curtain — so that they can “close” the deal for them and scare you into settling. If you actually had us attorneys defend your cases rather than merely have us settle them, do you really think the BIG-8 ATTORNEYS (listed below) would have the time and the patience to babysit these local counsel when they ask for assistance after we file our own motions for discovery?

Thus, a client in these smaller Does 1-20 (or 1-50, or 1-80) cases does not need to settle, especially if they do not live in the jurisdiction in which they are sued. This is true regardless of whether the plaintiff attorney is Dunlap Grubb & Weaver (Nicholas Kurtz or Ellis Bennett), Steele Hansmeier (John Steele or Mark Lutz), Gill Sperlein, Ira Siegel, Keith Lipscomb, or even Marc Randazza.

We do know how to defend these smaller cases.

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