Leemore Kushner

UNDER THE RADAR, 122 MALIBU MEDIA LLC “SINGLE DOE” CASES FILED

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malibu-media-case-consolidations

SINGLE DEFENDANT MALIBU MEDIA CASES?!?

Malibu Media, LLC has been one of the worst offenders in these copyright trolling cases. Instead of waiting for a full download to be complete, it has been reported to me that IMMEDIATELY UPON CLICKING ON THE BITTORRENT LINK (or in other words, as soon as an internet user “joins” the bittorrent swarm, EVEN IF NOT A BYTE OF DATA HAS BEEN DOWNLOADED), ***WHAM!*** Downloaders are tagged and are sued for copyright infringement.

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

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

MALIBU MEDIA ‘SITERIPS’

To make matters worse, Malibu Media, LLC is known to sue based on what is called a “Siterip” (essentially meaning that someone ripped a large set of videos from their http://www.x-art.com paid website, and posted a huge number of them into one bittorrent file). We won’t ask 1) if they’ve known about the Siterips, why they have not filed DMCA takedown notices for those Siterips, and 2) whether they were involved in the “leaking” of the various siterips (in my opinion, it is too convenient to have “Siterip #1… Siterip #2… Siterip #12…”). In sum, clicking on the wrong torrent file link with Malibu Media, LLC as your plaintiff production company can get you sued for 25+ titles, or “hits” as they like to call them.

MALIBU MEDIA ASKING FOR UNUSUALLY HIGH SETTLEMENT AMOUNTS

Now what makes these cases particularly offensive is that unlike the traditional copyright trolls who will only ask for $3,400 and settle for whatever they can get, Malibu Media, LLC will likely ask for at least a $10,000 settlement from each defendant. You see this by looking at the case names below that there appears to be only ONE defendant in each case. The reason for this is that their attorneys will tell the defendant that he’s the only one in the case, and that they’ll amend the complaint, “name” him as a defendant, and serve him with process if he doesn’t settle.

MALIBU MEDIA LAWSUITS SUE ONLY ONE “JOHN DOE” DEFENDANT

While I am against the concept of suing downloaders for the piracy of a film, I want to note that filing ONE LAWSUIT FOR ONE DEFENDANT is the proper way to do these lawsuits (and the courts will be much more forgiving based on the many filing fees paid to the court, especially since the court will not need to deal with rote procedural issues that have plagued these cases since their inception [e.g., improper jurisdiction, improper joinder]). In sum, in a case such as this one, a defendant must answer for himself the simple questions of 1) can I fight this (the answer is likely yes considering the “snapshot” methods in which they track the IP addresses relating to the downloads, along with the likely-present issues of late copyright filing dates), and 2) how would I like to proceed based on what I know about their evidence against me (based on my own network router setup and/or downloading habits)? X-art films have a very specific style and theme to them, and they attract a very specific genre of married men, one step up from those who enjoy classy soft porn. On top of this, the Keith Lipscomb IP enforcement company representing Malibu Media, LLC as their client does research on most defendants (note their mention below as “Dr. John Doe” in one of their cases to signal to the defendant that they know he has financial resources to pay a large settlement). For these reasons, it is often a simple question of EVIDENCE in determining whether to move forward with what is usually a very good defense, or whether to use that evidence we gather in your favor while attempting to negotiate a deeply discounted settlement on your behalf.

WHO ARE MALIBU MEDIA’S ATTORNEYS IN EACH STATE?

Up front, the local counsel you will read about below — Mary Schultz, Paul Nicoletti, Jon Hoppe, Leemore Kushner, Jason Kotzker, and Patrick Cerillo — are merely paid to file and fight these cases according to the instruction of Keith Lipscomb. They are merely cogs in Lipscomb’s IP enforcement machine, and in my opinion, there is no reason for anyone to be talking to them since they likely do not have authority to do anything but gather evidence, argue the cases and move them forward.

MARCH 2013 – 19 NEW CASES

Illinois Central District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01096)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01099)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01100)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01101)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-01102)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02058)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-02059)

Wisconsin Eastern District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00226)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00236)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00238)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00239)

Indiana Northern District Court
Paul Nicoletti of Nicoletti & Associates PLLC
Malibu Media LLC v. Joe Doe (Case No. 2:13-cv-00085)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00162)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00163)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00164)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00165)

District Of Columbia District Court
Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00268)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00269)
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00270)

FEBRUARY 2013 – 103 NEW CASES

New Jersey District Court
Patrick J. Cerillo – Attorney at Law
Malibu Media LLC v. John Doe (Case No. 2:13-cv-01179)
Malibu Media, LLC v. John Doe subscriber assigned IP address 68.32.191.163 (Case No. 2:13-cv-01176)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.142.2.132 (Case No. 2:13-cv-01178)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01180)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00214)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-01159)
Malibu Media, LLC v. John Doe subscriber assigned IP address 108.35.11.132 (Case No. 2:13-cv-01104)
Malibu Media, LLC v. John Doe subscriber assigned IP address 173.70.130.138 ( 2:13-cv-01106)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-01105)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00971)
Malibu Media, LLC v. John Doe subscriber assigned IP address 173.54.255.28 (Case No. 2:13-cv-00972)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00973)

Wisconsin Eastern District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00217)
Malibu Media LLC v. John Doe (Case No. 2:13-cv-00213)

California Southern District Court
Leemore L Kushner of Kushner Law Group
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00433)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00434)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00435)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00436)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00437)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00438)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00440)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00442)
Malibu Media, LLC v. John Doe (Case No. 3:13-cv-00443)

Florida Middle District Court
M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00467)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00468)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00469)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00470)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00471)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00472)

Florida Southern District Court
M. Keith Lipscomb (a.k.a. Michael K. Lipscomb) of Lipscomb Eisenberg & Baker PL
Malibu Media, LLC v. John Doe (Case No. 9:13-cv-80178)

Colorado District Court
Jason Aaron Kotzker of Kotzker Law Group
Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)
Malibu Media, LLC v. John Doe subscriber assigned IP address 97.121.170.141 (Case No. 1:13-cv-00428)
Malibu Media, LLC v. John Doe subscriber assigned IP address 69.29.143.104 (Case No. 1:13-cv-00424)
Malibu Media, LLC v. John Doe subscriber assigned IP address 63.225.246.31 (Case No. 1:13-cv-00423)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.212.197.251 (Case No. 1:13-cv-00425)
Malibu Media, LLC v. John Doe subscriber assigned IP address 71.218.22.157 (Case No. 1:13-cv-00426)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.171.198.44 (Case No. 1:13-cv-00427)

Maryland District Court
Jon A. Hoppe of Maddox Hoppe Hoofnagle & Hafey LLC
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00352)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00353)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00354)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00356)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00357)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00358)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00359)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00363)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00366)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00350)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00351)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00355)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00360)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00361)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00362)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00364)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00365)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00506)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00507)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00508)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00509)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00510)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00511)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00517)
Malibu Media, LLC v. John Doe (Case No. 8:13-cv-00518)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00512)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00513)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00514)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00515)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00516)

Illinois Central District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01072)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-01073)
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-02043)

Illinois Northern District Court
Mary Katherine Schulz of Schulz Law Firm, PC
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00863)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00878)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00880)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00883)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00884)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00885)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00888)
Malibu Media, LLC v. Dr John Doe (Case No. 1:13-cv-00891)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00913)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00915)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00934)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00935)

Michigan Western District Court
Paul Nicoletti of Nicoletti & Associates PLLC
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00158)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00162)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00163)

Indiana Southern District Court
Paul Nicoletti of Nicoletti & Associates PLLC
Malibu Media LLC v. John Doe (Case No. 1:13-cv-00201)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00203)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00204)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00206)

Indiana Northern District Court
Paul Nicoletti of Nicoletti & Associates PLLC
Malibu Media, LLC v. John Doe (Case No. 2:13-cv-00055)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00071)
Malibu Media LLC v. John Doe (Case No. 3:13-cv-00072)

Colorado District Court
Jason A. Kotzker of Kotzker Law Group
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.234.104 (Case No. 1:13-cv-00307)
Malibu Media, LLC v. John Doe subscriber assigned IP address 174.51.250.8 (Case No. 1:13-cv-00308)
Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.161.234 (Case No. 1:13-cv-00309)
Malibu Media, LLC v. John Doe subscriber assigned IP address 24.8.34.85 (Case No. 1:13-cv-00310)
Malibu Media, LLC v. John Doe (Case No. 1:13-cv-00311)
Malibu Media, LLC v. John Doe subscriber assigned IP address 67.176.40.151 (Case No. 1:13-cv-00316)
Malibu Media, LLC v. John Doe subscriber assigned IP address 75.71.30.155 (Case No. 1:13-cv-00317)
Malibu Media, LLC v. John Doe subscriber assigned IP address 98.245.154.142(Case No. 1:13-cv-00318)

P.S. – For those of us who follow these cases as enthusiasts, did you notice that there was no mention of Chris Fiore in this long list of cases? Perhaps he still has his hands full with the bellwether case.

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

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

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

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

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

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

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

    Book a Phone Consultation with a Cashman Law Firm Attorney

    “He loves me,” “he loves me not.” It can go either way in the Central District of California consolidations.

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    UPDATE (10/10/2012): “He loved her not.” All 33 cases severed and dismissed. Congratulations to all the Cashman Law Firm, PLLC clients who have been dismissed from these lawsuits.

    “He Loves Me, He Loves Me Not.”

    It appears as if us attorneys are playing a “he loves me, he loves me not” game watching Judge Klausner’s orders in the Malibu Media, LLC v. John Does 1-10 (Case No. 2:12-cv-03615) case in the California Central District Court (where copyright troll Leemore Kushner’s bittorrent swarm scam cases are). Quite frankly, it looks to me as if he is doing one of two things, but it is unclear which game he is playing.

    SCENARIO 1: “HE LOVES ME NOT”

    In the first scenario, Judge Klausner is against the John Does, and he is very aware of the case law that has been flourishing around the federal district courts in so many states cutting down the bittorrent lawsuits at the knees of the copyright trolls. The problem is that Judge Klausner hates a copyright infringer.

    So as we discussed in the “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article on 7/12/2012, the judge consolidated all of the Malibu Media, LLC cases under his control, his decision to separate out JURISDICTION and JOINDER issues was deliberate.  In his charade where he ordered Leemore Kushner (the copyright troll) to explain to the court why the cases should not be dismissed for LACK OF PERSONAL JURISDICTION — we know Kushner sues California defendants in the California courts, so jurisdiction is likely proper — the Judge was pretending to cause her grief, but in secret, he was winking at her and telling her he supports her cause.

    This order was EASY to comply with, and in just a few minutes time, Leemore Kushner filed the proper response explaining why jurisdiction was correct.

    UPDATE: *AS OF THIS AFTERNOON,* Judge Klausner graciously accepted her explanation, and in doing so, he established case law indicating that “it is proper to sue a bittorrent defendant where the bittorrent defendant resides.” Now for joinder.

    Now that Judge Klausner enjoyed Kushner’s explanation regarding PERSONAL JURISDICTION, today he asked her to explain to the court the JOINDER issue. Following this line of thought, she’ll provide him the usual “blah blah” swarm nonsense, and he’ll accept her explanation for that too. At that point, he’ll grant her motion for early discovery, and he’ll let the ISPs hand over subscriber information for the many defendants who are implicated in Leemore Kushner’s cases.

    While Kushner would no doubt be thrilled at this victory, Judge Klausner will have also scored a victory in his own “judgy kind of way.” If he accepts her explanation regarding joinder, he will have effectively ruled that“in California, suing defendants together in a bittorrent swarm is PROPER, even when the defendants never knew each other, and none of the defendants uploaded or downloaded to the other (because the dates and times of the alleged infringement would be weeks if not months apart).” In other words, NO MORE SEVERANCE AND DISMISSALS for improper joinder. Now wouldn’t that be a nightmare?!? Watch out for Judge Klausner. EFF, consider an amicus brief here, because HE IS SEPARATING OUT THE ISSUES.

    SCENARIO 2: “HE LOVES ME.” <– the MORE LIKELY SCENARIO.

    As we discussed in our “California Judge Consolidates ALL Malibu Media, LLC Cases, and WHY THIS IS BAD” article, Judge Klausner made a silly mistake and sent an ORDER TO SHOW CAUSE why the cases should not be dismissed for lack of PERSONAL JURISDICTION. Pretending for a second that he read my article (I highly doubt this is the case) where I chided him for his error in confusing PERSONAL JURISDICTION and JOINDER, he accepted Leemore Kushner’s explanation of why PERSONAL JURISDICTION is proper.

    Now, instead of saying, “okay, proceed with the case,” behind the scenes, Judge Klausner is getting ready to kill each and every one of the cases with one stroke of the pen. So, instead of admitting to his mistake (“who cares anyway,” he might think — “I just cost the evil troll some time and money.”), after being satisfied with Kushner’s explanation, he said, “Oh yeah, and by the way — I’m accepting your personal jurisdiction argument, but I’m not letting you subpoena the ISPs until you explain to me that JOINDER is proper. Why would you sue defendants together in the same lawsuit who were NOT INVOLVED IN THE SAME TRANSACTION OR OCCURRENCE? Silly troll.” In other words, he’s covering his oversight by making Leemore Kushner (the troll) jump through hoops, whereas in the end, he’ll take one look at her boilerplate answer as to why all the defendants belong in the same lawsuit and he’ll LAUGH HER OUT OF COURT. Severance and dismissal of each of the cases. “Go sue them individually and pay the $350 filing fee for each Doe,” he’ll say. In other words, Judge Klausner could be on your side.

    MY OPINION: I wrote this quick article because at this point, it is unclear what will happen, and since many people are calling into my office asking my opinion about this particular case (and the California consolidations in general), I wanted to be explicitly clear that IT CAN GO EITHER WAY. We can only wait and see what he’ll do, and based on that, you, the putative defendant, will learn whether Leemore Kushner or the Lipscomb gang will be calling you to solicit a settlement in the near future. There is really nothing else here. He is either for the trolls, or he is for the downloaders. He can bend the law in whatever direction his judicial activist mind would like to.

    So what’s you’re thought? Is it “he loves me?” or “he loves me not?”

    Why California Malibu Media Case Consolidations are Bad.

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    malibu-media-case-consolidations

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

    case-consolidations-malibu-media
    Gamopy / Pixabay

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

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

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

    Personal Jurisdiction (“Improper Location of Lawsuit”)

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

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

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

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

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

    Joinder (“Suing the Wrong Defendants Together”)

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

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

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

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

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

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

    Different Judges Give Inconsistent Rulings

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

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

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

    Case Consolidations Give Consistent Rulings

    Case consolidations are the easiest way to avoid inconsistent rulings.

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

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

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

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

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

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

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

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

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

    Malibu Media, LLC just solved the Personal Jurisdiction problem.

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

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

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

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

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

    You can see his order here.

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