'Defendant' In Prenda Law Case Reveals He Agreed To Take A Dive

from the incredible dept

Fri, Jan 25th 2013 6:44pm — Mike Masnick

Back in December, we wrote about one of Prenda Law's latest tricks (or, rather, a whole bag of tricks) involving using shell companies (who appear to be controlled by Prenda itself, where the CEO may have been faked via identity fraud) to file cases against a single "named" defendant who settles quickly... but part of that "settlement" is that the "defendant" agrees to allow discovery of a long list of "co-conspirators." Prenda argues that those co-conspirators cannot fight back against discovery, because they're not "defendants." And, thus, Prenda gets a big list of names/contact info of more people to shake down.

As we noted, there was some suspicion that the "named" defendants and their lawyers were somehow in on the deal -- and the judge in at least one case flat out asked Prenda's John Steele, and the defendant's lawyer Adam Urbanczyk, if they "were in bed together" to come up with such a settlement. At the time, we pointed out that it was still a big leap to assume that, but now there's a bit more evidence. In one of these cases, involving the likely-Prenda-shell-company Guava, one of the named defendants, Spencer Merkel, has filed an incredible affidavit in which he admits that Prenda had offered him a "settlement" in which he would be "named" in a lawsuit and agree to cough up his BitTorrent log files. And Prenda provided him with the lawyer who would then represent him thousands of miles from his home.

Michael offered me a settlement deal. The deal consisted of the following parts:

a. I would agree to be sued.

b. Prenda would ask for, and I would provide, a copy of the bit-torrent log from my computer. The excuse for gathering this log is that it would corroborate the IP address evidence that they had already gathered through the use of Prenda's sottware.

c. Prenda would, upon receipt of the information, dismiss the case against me.

4. In discussion of the settlement, Michael stated that he did not know of any pro bono attorneys in Oregon, but could provide the name of an attorney who might take my case in Minnesota. Because I cannot afford to pay an attorney, I agreed to be sued in the state of Minnesota. I then retained my attorney, Trina Morrison, based on the information provided to me by Prenda Law.

Now, throughout all of this, he believed that Prenda was representing Hard Drive Productions, one of the porn companies that Prenda used to represent, but whose cases they dropped entirely not too long ago to focus solely on these questionable shell companies they claim to be "representing."

5. Before the start of this case, I had not heard of Guava LLC. I believed that I would be sued by Hard Drive Productions, Inc. I believe that Guava LLC's case against me is based on my admission to Michael that I downloaded the video at issue in the Hard Drive Productions case.

6. Before the case against me was filed, I had not heard of Alpha Law Firm. I believed that opposing counsel was Prenda Law.

7. Afier subpoenas were served in the case against me, I learned of Guava LLC's and Prenda Law's practice of finding one John Doc to be a named defendant, and then discovering the names of and requesting settlement money from other John Does by issuing subpoenas to ISPs.

Oh, and it gets worse. After all of this... Prenda went after him again, which seems to be why he's now willing to speak out about the "deal."

8. Last week, on 01/15/13, I was once again contacted by Prenda Law Firm. I received a voice mail from someone on behalf of Prenda Law stating that I needed to make payment arrangements or I would be sued.

At the very least this raises very serious questions about the conduct of Prenda Law and some of the lawyers who represented these named defendants. Given that Prenda is already dealing with serious questions in multiple courts about possible fraudulent activity, finding out that they may have effectively blackmailed a defendant into taking a dive, for the purpose of "agreeing" to discovery to find another batch of people to go after, can't look good.

122196763 Merkel Affidavit (PDF)122196763 Merkel Affidavit (Text)

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Filed Under: discovery, john steele, prenda, settlements, spencer merkel
Companies: guava, prenda, prenda law

40 Comments

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Anonymous Coward, 25 Jan 2013 @ 7:00pm

Queue an airline ticket to the Caribbean in 3...2...1...
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- Nazi deGrammar, 25 Jan 2013 @ 8:00pm
  
  Re:
  *cue
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  - Anonymous Coward, 25 Jan 2013 @ 8:05pm
    
    Re: Re:
    Could be both depending on the line at the bodyscanners.
    [ link to this | view in chronology ]
  - Anonymous Coward, 26 Jan 2013 @ 6:42am
    
    Re: Re:
    Queue is correct. It can be both a noun and a verb.
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    - Pamela Anderson, 28 Jan 2013 @ 2:50am
      
      Re: Re: Re:
      Huh? Doesn't matter if it's a noun or a verb, it's wrong in the context of the comment.
      
      Cue is correct.
      
      Bodyscanner reference is funny.
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      - Some Other AC (profile), 28 Jan 2013 @ 6:45am
        
        Re: Re: Re: Re:
        From Merriam-Webster(http://www.merriam-webster.com/dictionary/queue)
        
        1queue noun \ˈky�\
        Definition of QUEUE
        1: a braid of hair usually worn hanging at the back of the head
        2: a waiting line especially of persons or vehicles
        Origin of QUEUE
        French, literally, tail, from Old French cue, coe, Latin cauda, coda
        
        As stated previously, queue is also correct.
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        Anonymous Coward, 28 Jan 2013 @ 10:42am
        
        Re: Re: Re: Re: Re:
        No. The word intended in the original was 'cue', meaning signal something or someone to start. (http://www.merriam-webster.com/dictionary/cue) It should be clear that 'queue', while sounding identical, does not share this meaning.
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S. T. Stone, 25 Jan 2013 @ 7:01pm

This no longer qualifies as comedy or farce. At this point, this goes into a whole new realm of what-the-fuckery that doesn�t have a word in any given language adequate enough to quantify the concept.
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- art guerrilla (profile), 26 Jan 2013 @ 4:47am
  
  Re: (post parasite here)
  something that occurred to me last night: the 'mistake' prenda, carrion (sic), etc are making, is that they are NOT part of the Big Boys Club...
  
  IF this was Bigshots, Clubem & Taketheirmoney, Lawfirm Inc, then The Law would simply look to get their cut, one way or the other, and they would be allowed to continue extorting people and violating all the laws they want...
  (see, MAFIAA)
  
  and/or their kongresskritter fiends whose beak they have wetted, will simply make the illegal, legal (at least for a select few...)
  
  no, it is because these guys are small, independent extortionists without the approval of the organized criminal puppetmasters that they are being kicked around *some* by The Law...
  
  IF this were being done at the behest of the MAFIAA, or some other power elite players, then i'm sure they would find a much more accommodating reception with The Law...
  
  no, these are just small timers trying to cash-in on the extortion racket that the MAFIAA, etc owns; and the REAL organized crime element doesn't want anyone horning in on their action...
  
  VERY much akin to the banksters, where THE major players who looted and crashed the economy skate away scot-free (WITH THE MONEY! in fact, we paid them off MORE), while a pitiful FEW, lowly henchmen get crucified for relatively nothingburger financial crimes...
  
  just speculatin'...
  
  art guerrilla
  aka ann archy
  eof
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  - Anonymous Coward, 26 Jan 2013 @ 6:50am
    
    Re: Re: (post parasite here)
    The big boys lawyers aren't dumb enough to try to pull the stunts these guys are trying. They have more effective ways of making money than extorting little fish. They use their connections to get giant tax breaks and ask the DOJ to take out those they don't like. They can't waste their time with petty crap like this.
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- Atkray (profile), 26 Jan 2013 @ 10:22am
  
  Re:
  It doesn't have a word in any given language adequate enough to quantify the concept, but the noise it makes is a needle dragging across a phonograph record.
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- That One Guy (profile), 26 Jan 2013 @ 6:11pm
  
  Re:
  Might I suggest 'honoring' Prenda by using their name as the new word?
  
  Prenda
  (verb)
  1. To screw up the legalities of a case to such a degree, that the onlookers can only look on in awe at the incompetence and/or corruption of those involved.
  2. To show such contempt for the legal system that it is clear to all and sundry that you just don't care anymore.
  
  Example: Man, his lawyer was doing so well, and then he totally prenda'd that case up when he ignored the orders the judge gave him and continued to question the witness in front of everyone.
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Jay (profile), 25 Jan 2013 @ 7:05pm

You know, I honestly thought they'd run out of ways to surprise me, and that they'd just come up with new variations of tricks they'd played before. Oh, how I can be proven wrong. This is AMAZING.
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- sophisticatedjanedoe (profile), 25 Jan 2013 @ 8:24pm
  
  Re:
  Stay intrigued. Even more mind-bending stuff will most likely surface next week ;)
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Anonymous Coward, 25 Jan 2013 @ 7:13pm

More twists than a ball of tangled up Christmas lights.
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Anonymous Coward, 25 Jan 2013 @ 7:21pm

After all of this... Prenda went after him again
What is it they say about Danes and Danegelds?
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- S. T. Stone, 25 Jan 2013 @ 7:28pm
  
  Re:
  �Even they know not to get involved with Prenda�?
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  - Niall (profile), 31 Jan 2013 @ 3:31am
    
    Re: Re:
    Getting involved with Prenda is worse than getting involved in a land war in Asia!
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Anonymous Coward, 25 Jan 2013 @ 7:49pm

Just about the time you think you've heard the last new low in moral behavior, you get to learn a new one that resets the bar lower.

No wonder there are so many bad lawyer jokes. Apparently Prenda is looking to be the poster child.

I agree that this is no longer entertainment and now looks to be what it is, legal extortion, plain and simple. This needs plastered across the news nation wide. I would suspect after that, a new country of residence might be desired for those of this outfit.
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- That Anonymous Coward (profile), 26 Jan 2013 @ 12:01am
  
  Re:
  They have all the cash stashed outside the US, they are ready to go.
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- Urban Cowboy (profile), 26 Jan 2013 @ 2:18pm
  
  Re:Prenda
  In their defense..they ARE lawyers...
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Anonymous Coward, 25 Jan 2013 @ 8:13pm

Why are the judges not reaming Prenda Law and making them pay massive fines.
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- Anonymous Coward, 26 Jan 2013 @ 7:07am
  
  Re:
  That just hasn't happened yet. Besides, the judges may just be waiting for them to pile on enough crap that their licenses to practice law get revoked and they are never allowed to practice law ever again. They also may be waiting for them to exhaust their entire bag of tricks so that they can set precedent in killing all of them so that others don't try to use them.
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sophisticatedjanedoe (profile), 25 Jan 2013 @ 8:21pm

New info
I just updated the post, added a new interesting document (scroll to the bottom.)
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- That Anonymous Coward (profile), 26 Jan 2013 @ 12:02am
  
  Re: New info
  Ohai SJD... are we having fun yet?
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  - sophisticatedjanedoe (profile), 26 Jan 2013 @ 12:22pm
    
    Re: Re: New info
    It's only the beginning...
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Anonymous Coward, 25 Jan 2013 @ 8:27pm

Thank you for the update, sophisticatedjanedoe. That was an interesting addition and I appreciate the extras.
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That One Guy (profile), 25 Jan 2013 @ 8:36pm

On the one hand, I'm glad that the guy is stepping forward with this information, as something like this should cause Prenda some serious hurt, and yet on the other I cannot suppress a serious case of schadenfreude over the fact that even after he threw his 'co-defendants' to the parasites(I won't demean wolves by comparing them to Prenda) they still tried to shake him down later.
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- Anonymous Coward, 26 Jan 2013 @ 7:10am
  
  Re:
  That's some serious lack of honor right there.
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joe, 25 Jan 2013 @ 8:39pm

the key to this is the motion to quash linked in the Copyright Troll blog. It provides the details of how this started.
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Mr. Pond, 26 Jan 2013 @ 2:20am

WTF?
This would appear to be a serious abuse of the entire legal process. At what point does this stop being a sequnce of events that irritates judges (never a smart move) and start being a criminql investigation in to a conspiracy to seriously pervert the course of justice?

On the facts as known I would suggest that several people should be going to prison, and by that I certainly do not mean the hapless does!
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Anonymous Coward, 26 Jan 2013 @ 2:21am

I hope Carmen Ortiz goes after Prenda Law, and John Steele.
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- Anonymous Coward, 26 Jan 2013 @ 2:32am
  
  Re:
  Highly unlikely as Carmen Ortiz tends to only target those who are defenceless.
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  - Anonymous Coward, 26 Jan 2013 @ 7:19am
    
    Re: Re:
    Naw. More like she only goes after those who she is either told to go after or will make her look "tough on crime." Those who pull the strings of the DOJ couldn't care less about Prenda's antics and this isn't exactly the sort of case that will win her "Bostonian of the Year" again.
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Anonymous Coward, 26 Jan 2013 @ 8:13am

This is the sort of lawyer and law that darryl, AJ, bob, out_of_the_asscrack and hurricane head up the ass are defending? Really?

Next thing you know they'll be organising a campaign to bring back slavery, out of concern for the slaveowners whose rights have been revoked.
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arachne (profile), 26 Jan 2013 @ 9:42am

Prenda Was OK Until Dots Started to Be Connected
All of the events in this case were spread across different courts in different parts of the country. It wasn't until defendants started to get a look at the big picture-- thank you to those who made the facts available-- that any single judge would have known what was going on. Even so it is necessary to come up with a legal theory that would allow the evidence of misbehavior to be introduced. (I'm not saying it doesn't exist, I just haven't given it much thought. A party can't just introduce evidence willy-nilly, it has to be allowed by the Rules of Evidence in the Court where the case is being heard.)
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I Forgot, 26 Jan 2013 @ 10:30am

Shakespeare
Wasn't it Shakespeare nobody listened to?
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Anonymous Coward, 26 Jan 2013 @ 4:52pm

Your move, Charles Carreon.
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Isaac the K (profile), 28 Jan 2013 @ 6:56am

I'm totally serious about this...
There is no WAY they could be this willfully incompetent.

Prenda HAS to be an Andy Kaufman-eque (the proto-Borat) prank on the entire legal system to force them into preemptively shutting down all future copyright trolls.
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inOr (profile), 22 Jul 2013 @ 10:01pm

Extortion
As I see it: Prenda's behavior is criminal extortion. Whether you are guilty of copyright violation or not, requesting cash in exchange for silence is extortion (No, I'm not a lawyer. If you're involved in such a case, ask a bona fide lawyer.) If they have evidence against a perpetrator of a crime, it's their duty to report the crime to the authorities. Similarly, if you receive one of their letters, it's your duty to report same. To your local DA, I guess. Understandably, if you think you may be guilty of their allegation(s), you may not want to involve the law immediately. But if you simply refuse their demands, the ball will now be in their court (Tennis, not judicial.). If they pursue a civil action, they will have to take you to court and convince a judge that they have the preponderance of the evidence on their side. As the TechDirt stories make clear, Prenda is having a hard time convincing judges (in more than one state) to award them any damages. If I understand correctly, you could have some success winning an award for your legal fees, if the presiding judge is convinced their suit is ill-founded, abuses the judicial system and you, and diverts the courts from doing their real job.
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