Team Prenda Has A Very Bad Day In Court... And You Can Watch It All
from the make-sure-to-bring-lots-of-popcorn dept
It has been almost exactly two years since Judge Otis Wright released his blistering opinion of Prenda Law and the guys behind it, John Steele, Paul Hansmeier and Paul Duffy ("Team Prenda"). There have been various fights here and there since then, but the specific appeal in that case was finally heard yesterday and you can (and should) watch the whole damn thing (which runs almost exactly an hour and a half -- though if you're short on time, you can skip the Morgan Pietz part, and just focus on the first and last parts involving Team Prenda's lawyer, Daniel Voelker)."Do you understand that the maximum penalty for contempt is life imprisonment?"In short, Team Prenda's own lawyer not only seemed completely unprepared and out of his depth in the hearing, he ended up arguing that rather than just pay $250,000, his clients would prefer to face criminal charges with the chance of life in prison (though, admittedly, such a sentence would be highly unlikely). From all indications, all three judges seem prepared to give Team Prenda what their lawyer appeared to be claiming they wanted.
There were many guffaw-worthy moments throughout the arguments, including Judge Tallman asking about the infamous Alan Cooper forgery, and Voelker playing really dumb, leading Tallman to ask if the "tooth fairy" made the document appear. Judge Tallman also repeatedly pointed out, in disbelief, that Voelker could assert that his clients had no idea how the document got forged when Cooper was Steele's "gardener" (actually housekeeper, but close enough).
All three of the judges seemed well aware of what Team Prenda was up to and how nefarious copyright trolling is. Judge Pregerson, who is 91 years old, talked about how his clerks explained to him how BitTorrent works, and then pretty clearly detailed how Team Prenda (and other copyright trolls) abuse the court system to "extort" settlements from end users. He concludes his description by saying, "Now that is just an ingenious... crooked, extortionate operation." Later he said, "They used our court system for illegal purposes -- to extort money." At least one of the other judges, Judge Nguyen referred to copyright trolling as "extortion" as well. The judges didn't refer to Prenda as a company or a law firm, but rather an "operation." It was a complete bloodbath. The judges also seemed well aware of other Prenda proceedings elsewhere in the country as well.
Basically, the judges seemed not just aware of, but very convinced by the evidence against Prenda's copyright trolling practices. Much of the opening part of the arguments consisted of the judges asking Voelker about those facts -- and Voelker dodging every one of those questions or responding that he didn't know, and then going back to procedural questions. The three-judge panel all found this completely unconvincing, and even where they were willing to grant potential procedural problems (mainly with the punitive sanctions on top of attorneys' fees), noted that if they rejected those, at the very least they were likely to (as mentioned above) just send the case back for criminal proceedings, which almost certainly would leave Team Prenda even worse off. Voelker's standard response: "They want their day in court." It sounds like they might get it.
There were two other really amazing tidbits, both from Judge Pregerson. First, right after describing the whole copyright trolling mess and (as noted above) calling it a "crooked, extortionate operation," he noted how historic this case was and how badly it was going to reflect on Voelker, even suggesting that Voelker may be implicated directly as well:
Pregerson: This is going to be written about for years and years, and you're probably going to be part of the story. They all will be. I don't know where this is going to end up. If they really want to have a trial on this... are you sure they want that?And then that leads into this astounding bit of courtroom drama:
Voelker: Absolutely your honor! They want a trial...
Pregerson: Is that what you want?
Voelker: Your honor, what I want is irrelevant. I'm just an appellate attorney. I'm not...
Pregerson: Well, you may be involved in this.
Voelker: I'm sorry your honor?
Pregerson: You may be involved!
Voelker: I don't believe so, your honor, with all due respect. I'm just the attorney.
Pregerson: And you're a great lawyer.Ouch. It appears that Pregerson wasn't joking around either. From Voelker's website:
Voelker: I really appreciate that.
Pregerson: That's what your ad says when you go on the internet, right? I wonder how many "super lawyers" there are in this country?
Voelker: There are a lot of them.
Pregerson: There are a lot of them. And a lot of them is BS too.
If you want another recap from someone who knows a hell of a lot more about how epically bad this went for Prenda, check out Popehat's take, which includes this:
I have never seen an oral argument go so badly for an advocate. The judges were immersed in the details of the record and plainly convinced that Prenda was a criminal operation that merited some sort of sanction. They clearly viewed the case not in isolation, but as part of a series of cases involving Prenda across the country — most of which are turning out very badly for Prenda. It seemed clear that they believed that Judge Wright had the power to impose some sort of sanctions, and that the record supported his doing so.I know that many of the Prenda watchers among our readers here keep wondering how it is that Team Prenda is not yet in jail. There are a lot of reasons for that, frankly, but their appeal in the 9th Circuit may actually lead them much closer to being in jail, in part because their own lawyer effectively said that's what they wanted.
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Filed Under: 9th circuit, alan cooper, copyright, copyright trolling, copyright trolls, daniel voelker, forgery, john steele, morgan pietz, paul duffy, paul hansmeier
Companies: af holdings, ingenuity 13, prenda, prenda law, steele hansmeier
Reader Comments
The First Word
“Slow moving
When it comes to things like this the law moves slowly. It seems like it is a glacier. The thing about glaciers is that anything it front of them is eventually moved and as it moved it is broken up; first into rocks, then pebbles, then sand. Eventually it is deposited at the bottom of some backwater where it is only noticed by a bottom feeder looking for a meal.Subscribe: RSS
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I know that many of the Prenda watchers among our readers here keep wondering how it is that Team Prenda is not yet in jail.
Shocked, not wondering, I'm shocked.
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However: why is there no talk about asset forfeiture for the defendants? After all they "extorted" money from their victims, so why do they get to keep such monies?
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As a lifelong proud geek, I'd have to file this one under "with great power comes great responsibility."
What our hypothetical student did brought no harm to anyone, but what these people have done takes the legal system and perverts it, potentially bringing life-destroying harm upon their victims. Judge Pregerson understands this; he's as outraged about how "They used our court system for illegal purposes -- to extort money" as all of us have been for the last few years now.
So yes, I certainly believe in making the punishment fit the crime. You fraudulently ruin people's lives: let your life be ruined in return!
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No, they should go away for quite some time. These were not petty crimes.
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An attorney acquaintance of mine on this:
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Crack legal mind for certain but you sometimes can't tell if he is even awake lol.. He goes off on some hilarious tangents.
At the end of the day Prenda is doomed.
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Don't hold your breath. It would be of no surprise that should the case be referred back for criminal proceedings that Team Prenda will then do everything they can legal or illegal to avoid having to face any court trial against them. You watch.
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Yes, I think that's the whole point. We want to watch this. Everything they've been doing since the beginning makes them look like the worst type of shysters, who think they're a whole lot smarter than they actually are, and we want to watch everything they've done come crumbling in on them.
I'll bring the popcorn.
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The key difference is that if you don't show up for one of those, the US Marshals hunt you down and drag your sorry ass there in cuffs. Care to venture which one?
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the US Marshals hunt you down
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Or possibly, having dealt with them for more than 5 minutes, he would prefer they face the criminal charges with the chance of life in prison.
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If left to run free, they will move on to their next scam.
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Is the lawyer "sandbagging"?
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Re: Is the lawyer "sandbagging"?
Judge Wright was super angry and adding massive penalties for not paying - maybe they thought their odds with the bond company was better than their odds with Wright. They are likely right about that too considering they have other outstanding judgements they never even began to pay.
The most baffling thing is saying they want a criminal contempt hearing - that could end up SO bad for them and Judge Wright would likely be the one conducting it. They tried to disqualify him once and failed - I doubt anyone with seriously consider taking the case away from Judge Wright at this point if it is remanded.
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Re: Is the lawyer "sandbagging"?
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Wow. How will the usual trolls handle this?
Notice I don't write "bad" or other redundant adjective, as all lawyers are in same criminal monopoly racket: these are just the most greedy.
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Wow. How will the usual trolls handle this?
Notice I don't write "bad" or other redundant adjective, as all lawyers are in same criminal monopoly racket: these are just the most greedy.
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Apparently, they will make some comment about lawyers in general in a weak attempt to deflect away from the copyright trolling that started this whole thing.
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That you can't see it goes to show how obtuse you are.
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Quick Sidebar Call to Pietz' office
So I'm betting one of the judges calls up Pietz, asking: "So what have you heard about the investigations???"
Call me...Cassandra
(What, no snakes????)(grin)
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Life in prison
I'm not sure the chances are so low...
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Slow moving
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This is brilliant
I am sitting here open mouthed at what is going on. I've been following Prenda Law for some years but never seen the courts themselves.
I would have paid good money to watch this. I still might.
This is pure, 100% gold.
Rob
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Super Lawyer - Registered Trademark. Huh.
Well, rape, kiddie fiddling, genocide, and RICO didn't come up, so there's that.
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He "didn't know" much about the cases or companies involved, avoiding any discussion about the facts. Except for the details that helped his clients. He let mistaken assumptions stand rather than correct them (Hansmeier was deposed, not Lutz) rather than reveal he knew anything.
He asked for the world (vacating the judgement), with a compromise of a remand while vacating the sanction. Even offering a remand with criminal contempt on the table, while distancing himself from that request. ("They want their day in court"... "What my clients want, what I want is immaterial").
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Or at least I hope so.
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Awesome!!!!
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Question: too new
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many appeared in court and refused to testify , saying they had nothing to do with Preda and do not know who does have anything to do with them, when asked to provide details about the case, like where the money is, they claimed the 5th and refused to testify, all but a lawyer who was supposedly only involved in the litigation and knew nothing of the day to day running of the business.
Simply a few lawyers got together tried a scam and when caught out are trying to use legal loopholes and twists and turns to get out of anyone taking responsibility for their actions.
Simple really, i hope the judges do not get bogged down with all of these he said she said and just use the evidence before them to ensure they do not get back the $250 000 they had to pay which they now want back, hopefully they will be forced to pay more or appear before a criminal court on charges of forgery and falsifying evidence, which could mean serious jail time.
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Prenda...
1) Is/was a copyright troll (sends letters demanding a settlement, cost of which would be less than even a nominal defense) over Bittorrent downloads of smut...
2) ... who conned courts into approving wholesale "tell me who these people are" (from IP address to account owner) demands of ISPs.
3) ... and in at least one case made fraudulent assertions of "hacking" in order to demand the IP addresses.
When called upon it by someone who actually brought them to court, it was found...
3) ... that the copyrights were being held by shell corporations
4) ... with no 'real' officers
5) ... except a paralegal (? "Mark Lutz") whose name got used as owner for the shell corporations
6) ... and that they'd forged the name of a groundskeeper (Alan Cooper) one of them had employed on the corporation documents.
7) ... and that they themselves had seeded the 'torrents that people had used.
Their suits started collapsing under the weight of scrutiny (and fraud charges from Cooper). When things started unraveling...
8) ... Lutz failed to show up to be deposed about the corporations,
9) ... the lawyers (Duffy, Hansmeier, Steele) declared they "knew nothing" about as convincingly as Sgt Schultz,
10) ... said lawyers hid their gains by Creative Account Management and then plead poverty in the face of awards against them
11) ... ignored emails and then claimed 'lack of service' to those self same email addresses
12) ... and had one of their local counsels (rent-a-lawyers, credentialed to serve in a district) - who they were trying to throw under the bus - turn on them, bringing to light some telling financial documents.
13) ... and when finally compelled to appear and answer very pointed questions, they plead the fifth.
They've pretty much been smacked down in every court they've appeared before.
These are the highlights as I remember them. I am sure I've got some details wrong here, so please correct me as you see them.
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Super Lawyer not so super
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They defrauded the courts, and that has the courts all concerned... yet the fact their playbook included threats of actions not supported by the law to sway people into paying them off to go the hell away never made much difference.
We have lawyers today making threats about talking to the neighbors to work around protective orders that put their ability to trash the name of defendants on a short leash. These cases are a money machine, powered by misery and extortion and seeing Pretenda walking away with millions and maybe a slap on the wrists was not a deterrent. Steps taken to curb the abuses lead to larger abuses where the slap on the wrist they get for doing it doesn't offset the amount of cash they pull in.
Broken law is broken, the rules have been broken, it is well past time that this actually gets fixed. Peoples lives are turned upside down in the pursuit of cash not the pursuit of actually stopping infringers. They don't want to make it stop, because its a huge revenue stream assisted by the courts who seem ambivalent at best to the idea that maybe a lawyer might stretch the truth to get paid.
So in 3 years when Pretenda finally gets a day in court, and 2 years after that when all of the foot dragging is done, we might finally see them punished for their crimes... pity it takes that long to turn a lawyers life upside down when regular people are lucky to have mere months.
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Aww yeah!
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It's like watching an ant arguing with an elephant, telling the elephant that he shouldn't be allowed to crush the ant if he puts his foot on the ant.
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Seriously, I was listening to this, and hearing him praise it all as an 'ingenious, clever extortion operation', and then harken back to a case he handled in 73... I cracked into a huge smile and just laughed.
I know the thought is immature, but all I could hear was 'Now listen here whippersnapper... back in my day we had some REAL extortion! You ever hear of it? Now you boys came close, but lemme tell you this doozie.'
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Judge Pregerson
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You know why 'team prenda' don't mind..
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Where the blame lies
I watched the oral argument video http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007584, and I have to say that I do not share the view expressed here about the quality of Prenda Law’s appellate counsel or, indeed, the optimism expressed here about the outcome of the appeal. To be sure, Morgan Pietz was by far the more engaging of the two appellate lawyers, and he displayed far more willingness to dig into the relevant precedents and argue about them, but Voelker may well have had the winning argument, and I thought some of the panel were treating him unfairly, even bullying him, out of frustration at his clients.
Voelker’s argument was that once the judge threatened jail time as a consequence of the sanctions hearing, it became a proceeding for criminal contempt, to which procedural due process requirements applied, and furthermore than when the judge (according to Voelker) precluded Prenda from putting on any evidence because its principals were invoking their Fifth Amendment privilege, he irrevocably tainted the proceeding. At that point, his argument is that judge couldn’t pull it back and save the proceeding by imposing civil sanctions based on the fact that the defendants asserted their Fifth Amendment privilege in the criminal proceeding (because invocation of the Fifth can be used against the lawyers in a civil proceeding). And he said, what my clients want is their day in court with proper procedures.
I have not read the briefs or the precedents on which he relied to make my own assessment of whether he has a good argument on that. But on listening to the argument of the Doe’s lawyer, and to the rebuttal argument, it seemed tome quite possible that the sanctions would be overturned, at least in substantial part and maybe entirely, on procedural grounds.
And considering that the argument was based entirely on procedure, it seemed to me entirely fair that Voelker refused to let the judges draw him into a discussion of the facts of the case. It’s not the strong point of the appeal (since factual determinations are reviewed for clear error), and anyway the facts stink to high heaven. So in this regard, Voelker’s approach may well have been the best one for his client.
Now, was the client’s choice wise? Maybe, maybe not. When you are representing parties in an appeal from the imposition of contempt sanctions, based on the argument that the contempt was criminal not civil you have to advise them to consider whether they want to take the risk of being prosecuted (I am currently handling such an appeal, http://pubcit.typepad.com/clpblog/2015/04/maryland-trial-judge-wrongly-enjoined-criticism-of-converg ex-caribbean.html although I think MY client is a bit more sympathetic than Prenda). But berating the appellant’s lawyer about the choice his clients made strikes me as unfair to the lawyer.
Beyond that, I found myself offended by the panel’s bullying of Voelker for representing his clients in a criminal appeal. The panel suggested that Voelker might have personally involved in the trial court shenanigans – was there any evidence in the record for that? Judge Pregerson (and Mike, too) made fun of the fact that Voelker’s web site cites his inclusion in the bullshit list of Superlawyers http://www.voelkerlitigationgroup.com/About-Voelker-Litigation-Group.php#awards (of course, so does Morgan Pietz’s web site: http://pietzlawfirm.com/attorneys/). But why is that relevant at oral argument? Judge Pregerson went on about the fact that Alexander Hamilton was born in St. Kitts, asking a series of questions to see whether Voelker knew Hamilton was born there. So what?
Over the years, representing clients taking unpopular positions, I have been bullied at appellate oral argument by judges who know you can’t sass them right back, and it sucks. I have also seen opposing lawyers bullied by appellate judges and I cringe when that happens. We might hate Prenda Law, but unless there is reason to hold its lawyer responsible for its bad conduct, we should concentrate our fire where it belongs.
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Re: Where the blame lies
Not necessarily, but to paint Voelker as someone completely unrelated to the Prenda gang isn't quite accurate. As SJD already pointed out, Voelker and Duffy go kinda way back.
And as for having stories written about him, it's already happened. In the Bloomberg article on Prenda Voelker was the one who shed some light about the gang's shared history.
If this was about guilt by association, Heather Rosing (the lawyer who passed on the message that Steele and gang were pleading the 5th) would have gotten the same shitstorm Voelker did. Voelker is getting what he's getting because he's not nearly as sympathetic.
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Re: Where the blame lies
I'd ditch the "Super Lawyer (R)" though.
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Re: Where the blame lies
I have followed this case closely, and read the transcripts of the infamous contempt hearing and the sanctions order. I have not reviewed them recently but--
At the hearing, the first thing stated by any of Prenda's lawyers was that they were taking the 5th. Please remember that this is the second time they had been ordered to appear, and they refused the first time. In the span of the session, the lawyers never once attempted to bring evidence to their behalf, even after Judge Wright told them that this was the venue for Prenda to defend itself, insisting that what they wanted to address were procedural issues. That is, rather then provide evidence and testimony about questions that have been raging across the country to counter multiple claims of fraud and failing to adhere to court orders issued by Judge Wright, they chose to insist that, procedurally, they could not be held accountable. So Judge Wright told the lawyer to make her legal arguments in a briefing and ended the session.
That likely leads to the judges questioning of facts, as the defense refused to produce evidence in the original trial, so its a little strange to insist they were denied the ability to produce evidence. Procedural games are Prenda's playground, and given the fact that they have been repeatedly smacked down for those games, I can see how the judges weren't going to take that in this case.
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