Claim That Righthaven Engaged In Unauthorized Practice Of Law Moves To Nevada

from the and-onwards,-I-suppose dept

Thu, Jun 30th 2011 5:52am — Mike Masnick

We recently wrote about a filing in South Carolina, claiming that Righthaven was engaged in the unauthorized practice of law. The petition carefully laid out how Righthaven's practices might qualify as such in a variety of states, so it's little surprise that the same argument has now also been filed in a case in Nevada, where the largest chunk of Righthaven cases have been filed. I wouldn't be surprised to see the same thing filed in Colorado soon as well. You can see the filing below... and right after it you can see that the judge accepted the filing almost immediately, before Righthaven had a chance to protest:

The court has reviewed the proposed brief and agrees that it may be useful to the court in ruling on the pending order to show cause why the case should not be dismissed for lack of standing

Once again, things are not looking very good for Righthaven these days. But, of course, I'm sure the judges are just doing this because they believe in Righthaven, and just want to give "guidance" to competitors... Yeah, that's the ticket...

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: nevada, unauthorized practice of law
Companies: righthaven

42 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 30 Jun 2011 @ 6:11am

I think a few vengeful lawyers (probably pissed off that they didn't come up with the idea first) are engaged in a smear campaign. I am shocked that the judged don't catch on to this and put and end to the stupidity.
[ link to this | view in thread ]
umbrau44 (profile), 30 Jun 2011 @ 6:25am

Yeah, that's the ticket...

The Pathological Liar lives!
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 30 Jun 2011 @ 6:28am

Re:
Maybe those "vengeful" lawyers are pissed off because the fraud that Righthaven is perpetrating is exactly why ordinary people hate lawyers, and that it brings into disrepute the practice of law?
[ link to this | view in thread ]
Dark Helmet (profile), 30 Jun 2011 @ 6:30am

Re:
For the love of all things holy, please tell me this was sarcasm....
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 6:38am

Re: Re:
It isn't sarcasm at all. The lawsuit is just about as vengeful as it gets, it actually makes the Righthaven cases look reasonable by comparison. If the acts they took are illegal, they should either be tried criminally, or taken in front of the state bar ethics panel.

Tossing lawsuits in like this is vengeance, pure and simple.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 6:52am

Re: Re: Re:
"The lawsuit is just about as vengeful as it gets . . . . Tossing lawsuits in like this is vengeance, pure and simple."

The relevant filing here isn't a "lawsuit" - it's an amicus brief supporting a defense argument re: Righthaven's lack of standing and unauthorized practice.

As for your notion of "vengeance" . . . turn-about is fair play, no?
[ link to this | view in thread ]
abc gum, 30 Jun 2011 @ 6:54am

Re: Re: Re:
Wow - if only vengeful law suits were illegal ... LOL

In other news - you are wrong.

I'm not sure why you think self defense is an act of revenge. Do explain. And remember that the best defense is a good offense.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 6:57am

I think this line of argument has a lot of merit, and I won't be surprised if this is the death knell to Righthaven. I still think that Righthaven has standing and the fair use rulings have been wrong, and I don't have a problem with the idea of assignments of claims in general. But this Unauthorized Practice of Law (UPL) argument attacks this thing from an angle outside of copyright law.

The argument is as simple as it is compelling. Righthaven loses whether they have standing or not. And they don't just lose--it's a fraud on the court.

I'm glad you're picking up these Righthaven UPL stories, Mike. I think this is going to be an important issue for them.

A simplified version of the argument is this: Righthaven is only being assigned the copyright so they can file an infringement claim over that copyright in their own name. But there's also an agreement that they'll split the profits with whoever assigns them the copyright. This means that the party assigning Righthaven the copyright is actually a client, and it means that Righthaven is representing that client as a law firm. But there's one big problem with that--Righthaven is a company, but not a law firm. It doesn't matter that Righthaven is full of lawyers and that actual lawyers prosecute the cases. Righthaven itself isn't a law firm per se, and that makes it the Unauthorized Practice of Law.

Kudos to the man that came up with this argument! I love a good argument, especially one from left field. ;)

I've been trying to figure out the counterarguments, but the more research I do on this the more I'm convinced that this argument is a game-ender for Righthaven--at least for the present incarnation of Righthaven.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 6:59am

Re:
I think a few vengeful lawyers (probably pissed off that they didn't come up with the idea first) are engaged in a smear campaign. I am shocked that the judged don't catch on to this and put and end to the stupidity.

I think it's more like a group of lawyers who don't like what Righthaven is doing on a personal level, and they're devoting their time and energy, likely even for free, to put an end to what they see as an abuse of the system. Even I can respect that, and I'm about as pro-Righthaven as they come.
[ link to this | view in thread ]
abc gum, 30 Jun 2011 @ 7:05am

Re:
So everything would be ok if Righthaven were a law firm?

How is this not champerty?
[ link to this | view in thread ]
jd2112 (profile), 30 Jun 2011 @ 7:11am

Re: Re:
99% of lawyers give the remaining 1% a bad reputation.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 7:16am

Re: Re:
I believe the law in Nevada requires that the champertor not have any ownership interest in the claim that he brings. I think it's not champerty here because Righthaven actually has an ownership interest in the copyright being sued on. However, that doesn't mean it's not UPL. In my mind it can be UPL, even if it's not champertous and even if Righthaven has standing. That's my understanding from doing some reading on the subject. I could certainly have that wrong.
[ link to this | view in thread ]
The eejit (profile), 30 Jun 2011 @ 7:29am

Re: Re: Re:
Thank you for your input on the matter. Sincerely.

IT's sort of ironic, considering Righthaven actually tried this with the person who stood for theirself in Nevada, IIRC.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 7:30am

This is hilarious: http://www.veteransnewsnow.com/2011/06/30/righthaven-to-fed-judge-my-dog-ate-my-court-representation s/
[ link to this | view in thread ]
Chris Rhodes (profile), 30 Jun 2011 @ 7:39am

Re:
Interesting, I hadn't considered that angle. +1 Insightful for you, sir.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 8:00am

Re: Re:
Thanks, Chris. Another thing to keep in mind is that UPL laws and champerty laws are state laws, and they differ from state to state. In can be UPL or champerty in one state but not another.

The little reading I did on it made me think they might be considered a collection agency in some states but not others. That might be one defense they could argue. I'm not really sure how that works though.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 8:03am

Re: Re: Re: Re:
Right. And keep in mind that some judges in Nevada have said that Righthaven didn't actually get an ownership interest. I guess those judges might buy a champerty argument. I don't buy it, but they certainly might.

It doesn't look good for Righthaven, that much is certain.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 8:19am

Re:
Oh, wow...

1. Go crazy filing questionable lawsuits.
2. Sit back expecting settlements to roll in.
3. Throw "in-house counsel" under bus and insult judge/s when it all goes sideways.
4. ???
5. Profit, er, vomit?
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 9:00am

Re: Re:
6. Hope to get out of this without losing law license.

The in-house counsel are identified as Coons and Chu in a footnote. Mangano is saying that he didn't think that Stephens Media or the others had to be disclosed because their interest in the lawsuit was indirect. Righthaven, as owner of the right, was collecting the total judgment/settlement. And Stephens Media or whoever was only getting half of the profit as a separate contractual matter.

Is that argument going to fly? Mangano says there's a lack of case law defining what is meant by "direct, pecuniary interest." I don't think Judge Hunt will accept this though. If half of what Righthaven collects, after expenses, goes to their assignor, I can see how that would be considered a direct interest. But I also see how it could be considered an indirect one--I get what Mangano is saying.

As Mangano tells it, it appears to be another one of these gray areas--the problem for them is that we already know how Judge Hunt rules when there's any gray. Or worse for Righthaven, it's not a gray area at all and they simply got it wrong. Either way I don't seem them not getting sanctioned.
[ link to this | view in thread ]
Hothmonster, 30 Jun 2011 @ 9:06am

Re: Re:
woot, one humanity point for the Budfuster
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 9:24am

Re: Re: Re:
I'm all for standing up for what you believe in.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 9:29am

Re: Re:
And really, Mangano couldn't find an example from any court saying that when a party to a lawsuit has a deal with a third party to split in a recovery, that third party has only an indirect interest in the suit? Maybe the case law interpreting the local rules was nonexistent, but surely he could have found a court somewhere else saying this to help back up his claim. Or is there really no support for his contention? Weird.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 10:08am

Re: Re: Re:
Mangano is one of the most deceitful lawyers on the planet. He has lied to judges repeatedly, and has the audacity to vouch for Righthaven's in-house attorneys. As if the judge cares what Mangano thinks. He is just as crooked as Gibson. They will make perfect cellmates.
[ link to this | view in thread ]
Hothmonster, 30 Jun 2011 @ 10:19am

Re: Re: Re: Re:
even if i believed this? http://www.cryptomundo.com/bigfoot-report/invisible-bf/

;b
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 11:30am

Re: Re: Re: Re: Re:
The only problem is now that FUDbuster agrees with the UPL argument, I am afraid none of the judges may accept it.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 11:35am

Re: Re: Re: Re: Re: Re:
LOL! I wouldn't worry about that. I think they'll jump all over this. It's much cleaner. They don't have to butcher copyright law to get there.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 1:05pm

Re: Re: Re: Re:
I don't think he's a bad person or anything. I do think he's let this thing get away from him, though.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 1:38pm

Re: Re: Re: Re: Re:
He was the one trying to extort $6k from Brian Hill. That was before Hill hired a lawyer who bitch slapped Mangano. Mangano ran with his tail between his legs, crying like a baby. He also lied about the settlement agreement he wanted Hill and his mom to sign. Mangano is a shameless, disgusting creature. Of course, this is only my opinion of him.
[ link to this | view in thread ]
The eejit (profile), 30 Jun 2011 @ 2:01pm

Re: Re: Re: Re: Re:
When it looks like a consistent misrepresentation to a judge, I think it's gon ea lot further than 'letting it get away from him,' to be fair. :)
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 5:03pm

Re: Re: Re: Re: Re: Re:
Was the decision to attempt to settle with Hill made by Mangano, or was he just following orders?
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 5:22pm

Re: Re: Re: Re: Re: Re:
Judge Hunt has certainly indicated that he feels he's been lied to. I hope it was just a mistake on Mangano's part, but I couldn't say either way for sure obviously, since I wasn't there. I'm willing to give Mangano the benefit of the doubt absent proof that he intentionally lied, though.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 5:27pm

Re: Re: Re: Re: Re: Re: Re:
A lawyer gets to pick his client just like a client gets to pick his lawyer. Mangano and Gibson were made for each other. Two crooked lawyers and compulsive liars shaking down the poor and disabled. What a team.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 5:28pm

Re: Re: Re: Re: Re: Re: Re:
What type of proof would you like? A confession?
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 5:36pm

Re: Re: Re: Re: Re: Re: Re: Re:
The kind where it's "inexplicable by anything but." I give people the benefit of the doubt until they give me a reason not to. Perhaps that's a character weakness, but that's how I roll.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 5:36pm

Re: Re: Re: Re: Re: Re: Re: Re:
Good point.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 6:01pm

Re: Re: Re: Re: Re:
Nobody can prove there is no Bigfoot, right? ;)
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 6:20pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Under normal circumstances your standard would be appropriate. But let's not lose sight of the big picture. From the beginning this was a brazen attempt to conceal Righthaven's fee sharing arrangement with Stephens Media. They would not have been able to claim ownership of the articles if this arrangement was disclosed upfront. There is enough circumstantial evidence here to convict Shawn Mangano and Steven Gibson of fraud on the court.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 6:49pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Maybe it was an attempt to conceal, I don't know. What evidence is there of malice though? Is it all inferential?
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 7:23pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Who said we need to prove malice? The judge thinks they have engaged in deception and made intentional misrepresentations to the court. There is plenty of evidence to prove dishonesty.
Gibson's television interview is further proof that his sophistry.
[ link to this | view in thread ]
FUDbuster (profile), 30 Jun 2011 @ 7:41pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
But is there actually bad faith? I see only circumstantial evidence that's inconclusive. Gibson tried to spin everything rosy, sure, but that's not evil in and of itself.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2011 @ 9:16pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
There is a big difference between painting a rosy picture and fabricating facts. Gibson kept insisting the judge only questioned the certificate but in fact Judge Hunt questioned Righthaven's motives in concealing the SAA and criticized its disingenuous argument that other judges had already found in favor of Righthaven on the standing question.

Gibson is a pathological liar, and a bad one at that. He reminds me of Iraq's Information minister who kept insisting they had defeated the Americans, while our tanks were rolling down the street behind him. Gibson too will pretend everything is fine until he is taken away in handcuffs. He must be clinically delusional.
[ link to this | view in thread ]
Karl (profile), 2 Jul 2011 @ 1:46pm

Re: Re: Re:
I believe the law in Nevada requires that the champertor not have any ownership interest in the claim that he brings. I think it's not champerty here because Righthaven actually has an ownership interest in the copyright being sued on. However, that doesn't mean it's not UPL. In my mind it can be UPL, even if it's not champertous and even if Righthaven has standing.

It's actually a pretty simple situation.

If Righthaven is not a law firm, then they are guilty of the unlicensed practice of law, since they conduct no business other than litigation, and that is simply not allowed.

If Righthaven were a law firm, they would be guilty of champerty, since (on a state level) law firms are not allowed to have ownership interest in the property that they are suing over.

Either way, Righthaven is SOL.

Now if Righthaven were a law firm, and did not bring the suits in their own name, then it would be allowed. However, this goes against their entire business model. The only reason newspapers sign up with (and in Stephens' case, created) Righthaven was so that the actual owners don't have to face any of the risks associated with bringing losing (and/or frivolous) lawsuits.

What amazes me most about this filing, is the number of times this has been tried before, and how the court smacked it down every single time. You'd think that Righthaven, founded as it was by lawyers, would have done a little more research into their sole business model.
[ link to this | view in thread ]