Righthaven: Blame Our Clueless Lawyer, But Don't Sanction Us, For Failing To Name Stephens Media As An Interested Party
from the that's-not-going-to-fly dept
The flailing disaster that is Righthaven just got that much more desperate and ridiculous. As you may recall, when Judge Roger Hunt ruled that the Stephens Media/Righthaven copyright transfer was a sham, the part that he got really incensed about (and it seems he was already pretty upset about the bogus transfer), was the fact that Righthaven totally failed to name Stephens Media as having an interest in the outcome of the lawsuit, as required by the law. This is pretty basic stuff that any trial lawyer knows. Judge Hunt called this "factually brazen" and demanded that Righthaven provide an explanation why it shouldn't be sanctioned:As shown in the preceding pages, the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court. Here, however, the Court will only focus on the most factually brazen: Righthaven�s failure to disclose Stephens Media as an interested party in Righthaven�s Certificate of Interested Parties. (Dkt. #5.) Rule 7.1-1 of the Local Rules of Practice for the District of Nevada requires parties to disclose �all persons, associations of persons, firms, partnerships or corporations (including parent corporations) which have a direct, pecuniary interest in the outcome of the case.� This Local Rule requires greater disclosure than Federal Rule 7.1, which only requires non-governmental corporate parties to disclose parent corporations or corporations owning more than 10% of the party�s stock. Frankly, if receiving 50% of litigation proceeds minus costs (Dkt. #79, SAA Section 5) does not create a pecuniary interest under Local Rule 7.1-1, the Court isn�t sure what would.So, now, Righthaven has filed its response, and I get the feeling it's not going to satisfy Judge Hunt at all. The response, written by Righthaven lawyer Shawn Mangano, basically throws an unnamed "former in house counsel for Righthaven" under the bus, claiming that he "failed to consider the full scope" of the rules that meant he had to disclose Stephens Media's monetary interest. This is, frankly speaking, ridiculous. The law is pretty clear:
Making this failure more egregious, not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this District. Accordingly, the Court orders Righthaven to show cause, in writing, no later than two (2) weeks from the date of this order, why it should not be sanctioned for this flagrant misrepresentation to the Court.
Unless otherwise ordered, in all cases except habeas corpus cases counsel for private (non-governmental) parties shall identify in the disclosure statement required by Fed. R. Civ. P. 7.1 all persons, associations of persons, firms, partnerships or corporations (including parent corporations) which have a direct, pecuniary interest in the outcome of the case.The filing insists that Righthaven was not willfully trying to avoid complying with the law and suggests that reasonable minds could differ over the interpretation of the above, because the monetary interest Stephens Media had in the case was "indirect" because money gets paid to Righthaven first, and then Righthaven paid Stephens Media. That may be the most tortured reading of "direct" I've ever seen:
Rather, former in house counsel for Righthaven apparently failed to consider the full scope of the "direct, pecuniary interest" language under Local Rule 7.1-1 in failing to list Stephens Media on its Certificate of Interested Parties.... Unlike its federal rule counterpart, Local Rule 7.1-1 does not define what constitutes a direct, pecuniary interest and there is an absence of case law addressing the scope of the required disclosures. While the Court has concluded otherwise, it is certainly understandable how Local Rule 7.1-1 could have arguably been reasonably construed to not require the disclosure of Stephens Media�s interest in any recovery in excess of costs under the Strategic Alliance Agreement (the "SAA").Somehow, I don't think that's going to fly, at all. The filing goes on to note that the court obviously should have just known about Stephens Media's interest in the case because there was so much press coverage about it. I'm not sure the point of that. Are they implying that if something is in the news, they don't have to follow the disclosure law?
The obligation to disclose Stephens Media as an interested party pursuant to Local Rule 7.1-1 was certainly not appreciated by Righthaven's undersigned outside counsel, who has been licensed to practice before this Court since 1998.... Counsel reasonably viewed any contingent payment to Stephens Media under the SAA as constituting an indirect interest that required a two-step payment process assuming any case resulted in a recovery.... Simply put, receipt of settlement funds through settlement or recovery by the enforcement of a judgment would be made to Righthaven.... Righthaven would then be contractually obligated under the SAA to subsequently pay Stephens Media any recovered sums over and above costs incurred.... Thus, while counsel certainly appreciates the Court's guidance and will adhere to its decision, there is certainly an arguable and reasonable basis to construe Stephens Media's pecuniary interest as indirect, and not direct, under the SAA.
Also, as Eric Goldman notes, the filing is extremely disingenuous in that in throwing the "former in house counsel" under the bus, it ignores the fact that Righthaven CEO Steve Gibson signed the complaint in this case (against Democratic Underground), meaning he was taking responsibility for the statements. Furthermore, it doesn't address the other 270 or so cases Righthaven has filed, all of which have the same problem, and not all of which were signed by the same "former in house counsel." Indeed, many of those were signed by Mangano himself. And Judge Hunt knows this -- which is why he mentioned the other 200+ cases in the question about sanctions.
This is characteristically weak from Righthaven, and it seems likely that the company is about to get slammed hard by Judge Hunt here.
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, sanctions, shawn mangano
Companies: righthaven, stephens media
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
But if Righthaven was using outside litigation attorneys, it's pretty fucking poor practice to blame in-house counsel for the mistake.
I guess if the CEO signed the complaint (odd), maybe they were doing this all in-house (also odd).
Anyway, that doesn't excuse the mistake, but brings it into the realm of plausibility that it was, in fact, a mistake.
[ link to this | view in chronology ]
Re:
Doesn't this imply the counsel was licensed to practice law in that state? If so shouldn't he be aware of local rules of practice?
[ link to this | view in chronology ]
Re: Re:
BUT, I have no idea what actual common local practice there is, and it sounds like there haven't been many cases actually interpreting the scope of that local rules requirement.
As for any attorney licensed in Nevada, I'm sure the vast majority of them have no need whatsoever to know the local federal district court rules.
[ link to this | view in chronology ]
Re: Re: Re:
You may not have to know ALL laws and rules, but it's not beyond expectation for you to know the laws and rules pertaining to whatever you are working on.
Honestly, when did "I didn't know" become an acceptable defense for a lawyer?
[ link to this | view in chronology ]
Re: Re: Re: Re:
The question here is whether they *did* know and chose to ignore it.
I think it's plausible that they were more incompetent than malicious (which isn't to say that I'm absolutely convinced that this is the case).
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
Tough shit for them. Lots of people make "mistakes" and pay for it with their freedom and get thrown in jail. Shouldnt be any different for these assholes than it is for the guy who gets into a bar fight.
Remember the ultimate credo:
Ignorance of the law is no defense.
[ link to this | view in chronology ]
Re: Re:
You should know that right? I mean, ignorance of the law...and all that.
[ link to this | view in chronology ]
Oh what a tangled web we weave when at first we practice to deceive
The funny thing about lies, you eventually paint yourself into a corner and leave yourself no way out.
A coworker of mine once said that if you always tell the truth, you don't have to worry about what you said or who you told it to.
[ link to this | view in chronology ]
Re: Oh what a tangled web we weave when at first we practice to deceive
[ link to this | view in chronology ]
Re: Re: Oh what a tangled web we weave when at first we practice to deceive
[ link to this | view in chronology ]
As for being "pretty basic stuff than any trial lawyer knows," it's really not. It's a local rule that is more demanding than the federal rules (which only require IDing someone with 10% or more ownership in the plaintiff).
Also, apparently the people filing the initial documents were in-house counsel (i.e., not trial lawyers).
Just goes to show you: kids, if you want to litigate, you're better off using litigation attorneys.
[ link to this | view in chronology ]
Re:
God, my four-=ear-old daughter could givew a better defense than these type-writing chimps.
[ link to this | view in chronology ]
Re: Re:
You should make a minimal attempt to verify something is true (or even plausible) before you say it.
There is no such thing as passing the bar with a specialization in litigation. In fact, most state ethical rules prohibit attorneys from advertising that they have any particular endorsement or specialization certificate (except for patent attorneys that have passed the patent bar).
Most in-house attorneys do NOT specialize in litigation. Maybe Righthaven is different. I don't know.
Moreover, local federal court rules are not tested on any state's bar exam.
[ link to this | view in chronology ]
Re: Re: Re:
There is, however, such a thing as passing the bar in your home state while knowing the litigation rules in your home state.
It's almost like their ins-house legal team isn't actually certified to pass the Nevada bar... or something.
[ link to this | view in chronology ]
Re: Re: Re:
How can you have local federal rules? That's a pretty big oxymoron.
And as for the "passing the Bar specialising in litigation" statement, I think it would be necessary to be at least remotely competent, unless you were going for cartoon villainy. A lawyer should be versed in litigation, especially within their specialisation (such as family law, Criminal law, IP law).
[ link to this | view in chronology ]
Re: Re: Re:
No, they're taught and tested IN LAW SCHOOL.
FEDERAL RULE OF CIVIL PROCEDURE 7.1 states that any non-government entity must disclose any parent corporation or publicly held corp. holding more than 10% of its stock to the court with its first appearance. http://www.law.cornell.edu/rules/frcp/Rule7_1.htm.
Any litigator seeking to practice in federal court MUST know the rules. Any particular variations by circuit, especially those specifically relevant to a case at bar, must be known by counsel seeking to practice in that circuit. In litigation, in all areas of law, procedure is king. Like it or not, if you've chosen to be a lawyer that's your lot.
This is all a sham, and Judge Hunt is a smart, capable judge--shame on Righthaven for trying to pretend otherwise on both counts.
[ link to this | view in chronology ]
Re:
Is it only me that is thinking this is some sort of racist 80's cop show?
"...and they fight crime!"
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
WORST PORNO EVER
[ link to this | view in chronology ]
We thought we'd get away with it.
Former inside council (and the rest of us) didn't think we'd ever get caught. The SAA that hid the 50/50 revenue split with Stephens Media was supposed to be secret. Please reject sanctions on that basis.
[ link to this | view in chronology ]
What Righthaven is unwittingly doing
[ link to this | view in chronology ]
um...
[ link to this | view in chronology ]
Certificate of Interested parties
In accordance with Fed.R.Civ.P. 7.1 and Local Rule 7.1-1, the undersigned, counsel of record for Righthaven LLC, certifies that the following have a direct, pecuniary interest in the outcome of this case:
1. Righthaven LLC, a Nevada limited-liability company;
2. SI Content Monitor LLC, an Arkansas limited-liability company;
3. Net Sortie Systems, LLC, a Nevada limited-liability company.
RIGHTHAVEN LLC
By: /s/ J. Charles Coons
STEVEN A. GIBSON, ESQ.
Nevada Bar No. 6656
J. CHARLES COONS, ESQ.
Nevada Bar No. 10553
JOSEPH CHU, ESQ.
Nevada Bar. No. 11082
9960 West Cheyenne Avenue, Suite 210
Las Vegas, Nevada 89129-7701
Attorneys for Plaintiff
[ link to this | view in chronology ]
Story on ARS Technica
[ link to this | view in chronology ]
I think that Mangano could have made this mistake in good faith--and I see no reason to think otherwise. And he has already made a good faith effort to correct this mistake in every other Righthaven case. Still, I imagine the-not-happy-with-all-of-this Judge Hunt will inflict pain for this transgression.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
In general I think you're right, but like most people, you're ignoring one crucial thing:
Righthaven is not a law firm.
They claim to be a "holding company," under USC 26 P. 543(4). Of course, under that law, they would need to earn at least 50% of their income from other sources... so even buying their own BS, they're still full of BS.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]