Asked To Explain The Disappearance Of Mark Lutz, Team Prenda Says They're Sure He Has A Good Reason

from the that's-not-what-they-asked dept

So we already covered the amazing disappearing act of Mark Lutz, the claimed "mastermind" of copyright trolling operation AF Holdings, though it appears almost no one (including courts) believe that Lutz is anything more than a patsy for John Steele and Paul Hansmeier, as was made clear quite early on in the infamous Sunlust hearing last year. Lately, Lutz has been missing a lot of things. He's missed two court hearings and one deposition.

At yesterday's hearing, apparently Magistrate Judge Franklin Noel gave Paul Hansmeier until today at 5pm to "explain the absence of Mark Lutz." Hansmeier actually filed his declaration early, but it doesn't appear to actually explain the absence. Instead, it goes on at length about how Lutz planned to be there (as was stated in court), but when it gets to the point where he's supposed to actually explain where Lutz went, instead we get this:

Mr. Lutz was traveling with another witness to the Hearing. The witness indicated that Mr. Lutz was not on the flight from Fort Lauderdale, Florida. I have attempted to contact Mr. Lutz but have been unable to reach him as of the time of this declaration. Based on my prior experience with Mr. Lutz, including Mr. Lutz’s prior in-person attendance before this Court on August 5, 2013, I believe that Mr. Lutz will be able to provide a good-faith reason for failing to make his flight to Minnesota.

Mr. Lutz has previously complied with orders to appear, including in Ingenuity 13 LLC v. Doe, No. 12-cv-8333 (C.D. Cal.); AF Holdings LLC v. David Harris, No.12-cv-2144 (D.Az.); and in this case, where he appeared in person at the August 5,2013, case management conferences

This is bizarre on multiple levels. First, Hansmeier filed this pretty early in the day, well before he was required to do so. You'd think, given the requirement to explain the absence, that Hansmeier would give Lutz at least some time today to get in touch. Saying he's sure that Lutz "will be able to provide a good-faith reason for failing to make his flight" is not actually answering what the court asked.

Second, the fact that Hansmeier states that Lutz appeared at a few hearings, but then fails to mention that he has missed a more recent hearing and a deposition just seems to be purposely trying to mislead the court. It's pretty clear that the lawyer on the other side, Paul Godfread, will point out those other recent absences, so it's a bit wacky that Hansmeier seems to think that ignoring them will not reflect poorly on himself.

Finally, the declaration also gives the details of Lutz's flight info:

Mr. Lutz also purchased a plane ticket from Fort Lauderdale, Florida to Minneapolis, MN. His booked flight, US Airways Flight 1924, departed from Fort Lauderdale at 8:35 a.m. on Sunday September 29, 2013, and landed in Charlotte, North Carolina. His connecting flight, US Airways Flight 713 departed from Charlotte, North Carolina at 11:25 a.m. and landed in Minneapolis at 1:05 p.m. on Sunday September 29, 2013.

This, itself, raises some questions. First of all, if Lutz did, in fact, live in Miami, Fort Lauderdale is a little bit outside of Miami, so getting to the airport takes some time (I've done that trip a few times). In court, John Steele claimed that he drove around in the morning looking for Lutz and found some of his friends who said he'd turned in early to get ready for the flight. At what time was this? If the flight was at 8:35 am, even if they were aiming to get to the airport at ~7:30 am, Steele must have gone looking for Lutz by 6 am or so (even that's probably pretty late). So Steele went randomly driving around Miami at 6 am and magically found Lutz's friends, but not Lutz? Really?

Filed Under: franklin noel, john steele, mark lutz, paul hansmeier
Companies: af holdings, prenda, prenda law

Prenda Soap Opera: Steele Contradicts His Own Previous Claims, Lutz Disappears Again... And The Mother-in-Law Surprise

from the again? dept

We already posted Nancy Sims' account of what happened in the latest Prenda hearing in Minnesota, but wanted to follow it up with some analysis, because there was a fair bit of interesting stuff in there. As you may recall, this is the case that was reopened after it had already been closed, because the Court wanted to get to the bottom of whether or not Team Prenda was engaged in fraudulent practices. To that end, Magistrate Franklin Noel started demanding actual answers to very on point questions. So far, Team Prenda has continued to dance around actually answering those questions, and the hearing was no different. The things that stood out to me from Sims' writeup:

Mark Lutz's disappearing act:

Mark Lutz has made it something of a habit to not appear where he's required to. He missed a key hearing in San Francisco, as well as a deposition in Georgia. In the California case, it took Team Prenda nearly a week to even acknowledge that Lutz had an excuse, which it then tried to keep shielded from the public. After that was rejected (repeatedly), it was finally admitted that Lutz was apparently "detained" at the airport while trying to board the flight. In this case, they produced a boarding pass, though it's unclear why John Steele would have Lutz's boarding pass, or how he magically found Lutz's friends driving around the streets of Miami early in the morning (the hearing in Minnesota was in the late morning, so it must have been an early flight). It seems unlikely that courts are going to continue to forgive Lutz for his disappearing act when ordered by courts to appear.

It was especially pertinent in this case, given that the whole focus of this particular hearing was on the legitimacy of the copyright assignment to AF Holdings, and the point was to get everyone together in a room to find out who actually signed the document. Lutz not showing up can't make Judge Noel happy -- and he'd already demonstrated an awareness that Team Prenda is up to no good with all of its activities.

John Steele finally takes a stand... though he may wish he hadn't.

This was a bit odd. Seeing as Steele had pleaded the Fifth in the Otis Wright case in California, it seems like a badly miscalculated move to take the stand in Minnesota, where he needed to testify about some of the same issues. His testimony can go back and be used elsewhere, including in Otis Wright's court. You don't get to plead the fifth in one court, pretend that never happened, and then testify in another court.

Furthermore, Steele made a bunch of claims that appear to contradict previous claims. For example, he talks about how he supposedly helped Cooper set up VPR Internationale. Of course, we'd already discussed how the timing on this is wrong. In a previous filing in a case in Arizona, Steele had said, via sworn deposition, that Cooper had expressed interest in setting up a company in early 2011, and then later said that "Cooper ended up not moving forward with the ideas Steele proposed to him." Yet, VPR Internationale was formed in 2010 (i.e.,. before this conversation supposedly happened). And while it had Alan Cooper's name attached to it, it was done with John Steele's email account, and the physical address was of Steele's sister. Also, while Steele had said in the earlier case that Cooper never went forward with this company, now he's claiming he did, which would explain why actual lawsuits were filed under this. It would appear that in either this case or the Arizona case, something Steele said was blatantly false.

Also, the claims about hooking up Lutz and Cooper seem far fetched and unbelievable given a variety of other statements. Cooper directly denied ever talking to Lutz on the stand. But then there's the question of who actually got the signature, and here Steele starts to throw Lutz under the bus, saying that he believed that Cooper had authorized Lutz to sign on his behalf. That's interesting, because in the now infamous deposition of Paul Hansmeier in the case in Northern California, Hansmeier (who is now acting as the lawyer in this case, if you can keep all this straight) specifically said that Lutz had asked Steele about Cooper's signature and if it's legit. From that deposition in February:

Mark Lutz spoke to Mr. Steele and said, Well, I understand that there's an issue with this Alan Cooper and asked Mr. Steele point-blank, Is the signature a forgery. Mr. Steele said the signature is not forgery. And he asked him, Is the -- is this signature authentic. Mr. Steele says, yes, the signature is authentic. Based on Mr. Steele's representation, we have no reason to believe from what Mr. Steele said, at least, that the signature is a forgery or there's some sort fraud going on with respect to the signature.

So... to get this straight: in different cases, Steele, Hansmeier and Lutz have argued that Cooper actually signed the document, that Steele got Cooper to sign the document, that Lutz asked Steele if the signature was legit... and that Steele overheard Cooper and Lutz talking, believed that Cooper gave Lutz permission to sign his name, and that it's likely Lutz who signed for Cooper (something Cooper fully denies).

Of course, if, as they're claiming now, Lutz signed for Cooper, then why would Lutz have called Steele to confirm the signature is legit, as Hansmeier himself said while being deposed? Hansmeier and Steele simply can't keep their story straight -- and telling different courts wholly conflicting answers is generally not a smart thing to do (leaving aside the move to plead the Fifth elsewhere and then testify on the same issues later). I've said it before and I'll say it again: Steele reminds me of people I've known who think they're the smartest person in the world, when they're really not. They seem to think they can talk themselves out of any situation at all. But they generally end up making things worse and worse for themselves.

Thanksgiving in the Steele household may be chilly this year

The wacky issue to come out of the hearing is the involvement of John Steele's mother-in-law, Kim Eckenrode (Steele's wife's maiden name is Kerry Eckenrode). There had been earlier reports that Alan Cooper had received "a text message" telling him to call Paul Godfread, which is how Cooper first found out about his name being used in these cases, leading to his filings claiming forgeries. Team Prenda had long implied that this magic "text" had come from the EFF, which Team Prenda has sought to paint as some crazy group of radicals. But, it turns out that the text message, now entered into evidence, came directly from Steele's own mother-in-law, telling Cooper he should call a lawyer.

Steele tried to play this off by arguing (1) his mother-in-law was religious and disapproved of Steele working with porn companies and (2) she frequented blogs like DieTrollDie and FightCopyrightTrolls. Still, it's quite a leap from those two points to recognizing that Cooper's signature may have been used on filings in various cases without his approval. The fact that the elder Eckenrode understood enough about what was going on to alert Cooper that it appeared her own son-in-law was up to no good with his name just adds an interesting element to all of this. I'm almost surprised Steele didn't claim that Eckenrode was a dues-paying member of EFF.

Either way, I can't imagine that's good for family gatherings in the near future.

Get to the damn point

As is frequently the case, Team Prenda seems to want to do everything possible to avoid actually zeroing in on what judges are asking. In this case, the hearing was solely about whether or not the copyright assignment was legit, and Hansmeier tried to put a bunch of totally irrelevant people on the stand to smear Cooper, and then tried to get Cooper to talk about totally unrelated issues as well. I'm not sure why Hansmeier, Steele and Duffy seem to think this "baffle them with bullshit" strategy will be effective, because the deeper you look, it just makes them look more and more like they're not being straight with the court -- and, while they may think they're smarter than everyone else, I have faith that more and more judges clearly understand what Team Prenda has been up to.

Filed Under: alan cooper, brent berry, forgery, franklin noel, john steele, mark lutz, paul godfread, paul hansmeier
Companies: af holdings, prenda, prenda law

Report From The Court Room On Latest Prenda Hearing In Minnesota: Another Hearing, Another Mess

from the and-mark-lutz-has-disappeared dept

Lawyer Nancy Sims attended the latest Prenda hearing today in Minnesota and agreed to let us post her recap of what happened in the courtroom. We'll have a more complete analysis of what happened later. For now, this is a "just the facts" coverage of the events of the day.

I attended the hearing today in what the presiding judge, Magistrate Judge Franklin Noel, characterized as “several iterations of” AF Holdings LLC v. Doe (case nos. 12-1445 – 12-1449). The cases at hand have all previously settled and been dismissed, but the court determined it has the inherent authority to investigate whether it has been the victim of a fraud.

The order for the hearing limited the discussion to whether the copyright assignment agreements for two films, "Popular Demand" and "Sexual Obsession," attached as exhibits in the various AF Holdings v. Doe cases, are authentic. The discussion during the hearing ranged a bit further afield.

These are my own impressions of what happened, but I don't guarantee their accuracy -- I'm not a court reporter, and I'm not fully up on the details of all the Prenda/AF Holdings/etc cases. And I couldn't always hear everything. I've tried to be fairly objective in reporting what I saw and heard, but to own up to my biases, I am an attorney whose interest in copyright sits solidly on the public interest side. I don't represent or have any interests with respect to any of the folks present in court today, to the best of my knowledge. (How's that for lawyer-talk.)

Individuals present in the courtroom today included:

• Paul Hansmeier, lead attorney for plaintiff AF Holdings, LLC
• John Steele, formerly a legal partner of Mr. Hansmeier
• Brent Berry, northern MN real estate lawyer
• Jason Flesher, northern MN resident
• Alan Cooper, who alleges his signature was forged on documents related to AF Holdings
• Paul Godfread, attorney for Mr. Cooper

And some audience members.

John Steele Takes The Stand

Mr. Hansmeier began the day by calling his first witness, Steele, and displaying to him on a document viewer the copyright assignment for "Sexual Obsession." Mr. Steele authenticated the assignor's signature as that of Ray Rogers, based on familiarity with Mr. Rogers signature from several instances of business, etc. Mr. Steele also testified that he believed the use of Mr. Cooper's signature on this document was authorized, because Steele introduced Cooper to the owner/controlling member of AF Holdings.

At this point, and at a couple of later points, the judge asked what exhibit number the documents were that Hansmeier was displaying (since the document viewers don't produce an ongoing copy.) Hansmeier apparently didn't intend to offer the documents into evidence, but the court later entered the copyright assignments in question (originally filed as exhibits in cases 12-1445 - 1449) as exhibits 1 and 2 for this hearing.

Hansmeier elicited lengthy testimony from Steele as to his knowledge of Cooper's involvement with AF Holdings, his involvement with helping Cooper to form a company (VPR, Inc) to market adult content, and about the nature of Steele and Cooper's relationship over the years. The overview of this testimony is that Cooper was recommended to Steele in 2006 or so as a possible caretaker for his cabin in northern MN, that Cooper lived there subsequently rent-free in exchange for a limited amount of work around the property, that subsequent to Steele's divorce they had hung out more, and that they had been "very good friends by 2010." Steele also testified that he had helped Cooper set up VPR, Inc, that Steele had introduced Cooper to Mark Lutz, and heard Cooper's end of phone calls with Lutz on at least two occasions, and that Cooper had gotten "a kick" out of being associated with the adult industry, and repeatedly joked with friends and others about coming to work for him in his porn company, at least as early as 2011.

Steele testified that he had closed his law firm, Steele Hansmeier, over a short period starting in November 2011, because "I was quite frankly surprised with the vitriol and nastiness of the pirates we were pursuing." He mentioned a blog post that showed pictures of his house and small child, and included violent threats against the family. Steele appeared visibly upset during this part of his testimony. Steele continued his testimony to affirm that after closing the lawfirm, he decided to sell his cabin in July of 2012. At this point, the Judge himself intervened to ask what the point of this testimony was; Mr. Hansmeier said it was directed towards motive.

Steele then testified that Mr. Cooper had been angry and hostile once he knew the sale was going forward, and that Cooper had taken items from the property, caused property damage, and attacked or threatened people who came on the property. The judge again intervened, to direct the discussion toward an end point; Mr. Hansmeier then asked Steele about his knowledge of rumors, started by Mr. Cooper, that Steele had molested Cooper's daughter.

Things then got refocused on the topic of the hearing. The copyright assignment for "Popular Demand" was shown to Steele, and he again authenticated Ray Rogers's signature for the assignor, and stated that Steele himself had used this document to file registration documents with the Copyright Office. Then, focusing on the other signature, Steele testified that he did not know if Cooper had signed the documents himself, but spoke to his "understanding" that Cooper had authorized Lutz and his people to sign documents like this on his behalf.

Judge Noel then directed several questions to Steele about the documents in question, and Steele's understanding that Cooper had authorized Lutz to sign on his behalf. Judge Noel elicited that this was based on hearing Cooper's half of two phone conversations with Lutz. Noel also elicited that Steele does not actually know if Cooper signed those documents, but that as far as Steele knew, Cooper had had a position as a "helper" for AF Holdings. Steele testified that he did not know if Cooper was employed by AF -- because Steele himself had no involvement with AF, other than them having been very briefly clients of the Steele Hansmeier firm. Finally, Noel questioned Steele as to whether he knew who signed the Cooper name on either of the exhibits, and Steele testified that he did not.

Jason Flesher's testimony

Hansmeier called Jason Flesher to the stand, who testified that he had known both Steele and Cooper for 4-5 years. Hansmeier began questioning Flesher about the nature of Steele and Cooper's relationship, but the judge redirected him, and he then focused his questioning on Flesher's knowledge of Cooper's involvement in AF holdings. Flesher testified that Cooper's partner, Charity (last name not ever clearly established) had talked with him about her concern over Cooper's adult industry involvement on cabin visits as early as 2011, but that he did not know anything further about Cooper's invovlement in signing documents, or details of his involvements with any companies. The judge briefly questioned Flesher about his knowledge of the copyright assignment documents (none) or familiarity with Cooper's signature (none), and Flesher was dismissed.

Brent Berry's testimony

Hansmeier called Brent Berry to the stand, and began questioning him about the nature of Cooper and Steele's relationship, Cooper's behavior after Steele decided to sell the house, and so on. The judge intervened to focus again on the documents, eliciting that Berry had seen Cooper's signature before, but wouldn't recognize it on sight, and did not know if the signature on the documents was Cooper's.

Alan Cooper takes the stand

Hansmeier then called Cooper to the stand. Hansmeier's questions posed to Cooper were often spoken quite quickly, so in a number of instances, Cooper had to ask them to be restated. Cooper also fairly frequently didn't respond directly to the questions, so this part of the recap is a bit more out of order.

Hansmeier's initial line of questioning focused on Cooper's claim that other AF Holdings documents had included forgeries. Cooper wasn't quite sure why he was being questioned about other people's signatures; "I'm concerned about my signature." Finally, the judge directed some specific questions about Cooper's knowledge about specific signatures related to the case, and Cooper responded that he did not have any specific evidence about forgeries of signatures for Mooney, Webber, or Salt Marsh. Godfread objected that this seemed to be litigating the motion pending in October, and this was sustained.

Hansmeier began a new line of questioning, about Cooper's testimony in other courts as to his involvement with AF Holdings. Cooper acknowledged that he became aware that his signature was being used related to AF Holdings in late 2012. Cooper stated that Steele had told him at an earlier date that if anyone asked any questions, they were to be directed to Steele. Hansmeier cut off Cooper's testimony on that point, and kept questioning him about other members of his community who might have made him aware of his involvement at an earlier date. Cooper testified that his father-in-law (an ex law-enforcement officer) had told him he needed to find out why Steele was telling him to forward any questions.

After this, Hansmeier's questions shifted direction repeatedly. He raised several points apparently intended to discredit Cooper: about being paid for testimony (Cooper denied he is), having expenses covered for his trip to an LA hearing (Cooper affirmed flight and one night hotel were covered by EFF), lost jobs (Cooper denied), mental health diagnoses and medications (also denied), and whether Cooper had ever signed anything on behalf of Steele (some unclear discussion about DMV registrations.)

There was a confusing line of questioning about why Cooper thinks he's being held out as CEO of AF Holdings. Cooper tried to look something up on his phone (and was directed by the judge to stop). Cooper basically insisted that he wasn't the CEO of AF Holdings, and the judge eventually said that whatever was on the documents in evidence would have to be good enough. Hansmeier worked hard to get Cooper to testify "who told you that your name was being held out as CEO of AF Holdings" but Cooper just didn't remember, and focused on his concerns about his signature being misused.

Another line of questioning focused on how Cooper had retained Godfread, and a text message he had received, which was his first alert as to his name being used in association with AF Holdings. Cooper testified that the text had come from a Kim Eckenrode, who is John Steele's mother-in-law. Cooper also testified that he had been referred to Godfread via an attorney whose number Eckenrode had texted to him.

Cooper denied any specific memory of March 18, 2011 (which I believe is the date Steele testified he introduced Cooper to Lutz by phone.) Finally, Hansmeier asked Cooper why he believed Steele owned Prenda Law; Cooper said Steele told him that, but that he had never seen any documents to that effect.

The judge then questioned Cooper, establishing that he had no familiarity with AF Holdings prior to the text from Eckenrode, that Cooper had never worked for AF Holdings or AF Films (Steele had previously testified that he thought any mentions of AF Films were typos), that he'd never signed any documents on behalf of AF Holdings or Films, that the signatures on the copyright assignments in question are not his and that he does not know who signed them, that he did not authorize anyone to sign his name, and that he did not know these documents were being submitted to a court "with what purports to be your signature."

Godfread then questioned his client; Cooper denied Steele approaching him in 2010 about getting involved in the porn industry. He also stated that he did not know about VPR, Inc before last year, nor had he agreed to be an officer or have any other position with that group, nor to authorize use of his signature for that venture. Cooper stated that he had never met Lutz, nor talked to Lutz on the phone, nor ever indirectly told someone to talk to Lutz on his behalf. Cooper said that he did not authorize use of his signature on any documents related to AF Holdings or AF Films.

Godfread introduced a copy of the text from Eckenrode, including an attached image of Cooper's purported signature on a document. There was some discussion about the admissibility of this copy of the text, including questioning from the judge about how Godfread had gotten the text to the page (emailed to himself). It was entered in the record as Exhibit 3, "with all caveats about what it purports to be." Godfread questioned Cooper basically as to whether the printout of the text was what Cooper had received from Eckenrode. The judge asked briefly if Cooper had ever received any money from AF Holdings or VPR, or been employed by AF (no to all.)

Hansmeier then questioned Cooper (or tried to) about Hansmeier's own previous conversations with Cooper. Cooper expressed confusion about whether he'd met Paul Hansmeier or his brother Peter, and maintained that whichever brother had visited the cabin, Cooper had not been around much or talked much with him. Hansmeier brought up that he had stayed in Cooper's own cabin, but Cooper said he'd stayed away during that visit because "I didn't want to deal with you". Hansmeier, apparently taken somewhat aback, said "I didn't know that," and allowed that line of questioning to drop.

Hansmeier tried to call Godfread to the stand, and Godfread objected. The judge conferred with his clerk for a bit, and questioned Hansmeier as to his intent in questioning Godfread (to establish whether AF Holdings had any knowledge of Cooper's concerns prior to filing the copyright assignments with courts). Godfread reiterated no knowledge on those points. After a bit more conferring, Judge Noel directed the attorneys to Shelton v. American Motors, 805 F 2d 1323 as on point, and said they'd reconvene on that point after lunch.

Before lunch, Hansmeier brought Steele back to the stand to address the text message (over Godfread's objections as to Steele's lack of direct knowledge of the conversation.) Steele testified that his mother-in-law is very religious and was very concerned over his involvement with the adult industry, and had been active on Die Troll Die and other sites. He testified that he has no interest in Prenda Law, but that she had gotten over excited about "random guesswork from internet pirates." Hansmeier also questioned Steele as to whether Cooper has any other litigation pending against Steele -- he does, but Steele said "it defies logic" that an attorney would forge a signature when he could get anyone in the world to sign a document.

The judge questioned Steele about the text message, eliciting that he doesn't know whether it was sent by his mother-in-law, but that it was consistent with the tone of "anonymous pirates on the internet." He mentioned something about the Secretary of State of Illinois, and Judge Noel followed up to ask about that; Steele testified that the Secretary of State website would show that Prenda was created by Paul Duffy. There was some additional questioning about St Kitts and Nevis, and AF Holdings and Prenda, and that a lot of people incorporate there.

Where's Mark Lutz?

We broke just before noon, to reconvene after lunch on the point of whether Godfread would testify. When we reconvened, Hansmeier, having read the case the judge suggested, recalled his request to have Godfread testify. And then things got really interesting.

Judge Noel referred to his order for this hearing including an order for Cooper to appear in person, and for an officer of the plaintiff "capable of testifying as to the authenticity" of the documents to also appear. He reviewed the witnesses who had appeared, and noted that we'd heard nothing from AF Holdings -- though he mentioned that he was "not sure what Steele's role" was in all this other than being a former partner of Hansmeier... "So," he said, "Where's AF Holdings?"

Hansmeier said that Lutz was planning to come, and is the sole officer of AF Holdings, and did make it to an earlier conference in this case in person, but that he wasn't present today, and that Mr. Hansmeier hadn't been able to reach him by phone or email. He voluntarily elaborated that Steele and Lutz had been booked on the same flight from Miami, that Steele had gone to Lutz's apartment to meet him (because Steele had Lutz's boarding pass), but found him not home. Steele had then, according to Hansmeier, driven around Miami looking for Lutz, and even encountered some of Lutz's friends who said Lutz had told them the night before that he had to make an early night of it because he was traveling to this court in the morning. Hansmeier offered the boarding pass as proof that Lutz had intended to come. (Steele was not present in the courtroom after lunch.)

Godfread suggested that Lutz has repeatedly failed to appear at evidentiary hearings related to AF Holdings cases. Hansmeier responded by stating that Lutz hadn't been able to attend one hearing because he'd been detained by "federal agents" in an airport (the court requested clarification on this point, but all Hansmeier had was that; he stated that Lutz had asked to file further details of that detention, in that case, under seal because the detention was embarrassing.) Hansmeier finally stated that Lutz has appeared, before Judge Snow in Arizona, on closely related points.

Judge Noel took this all in, gave parties until close of business tomorrow to file all declarations, and said he'd issue an order "in due course." The court recessed just about ten minutes after convening for the afternoon.

Filed Under: alan cooper, brent berry, forgery, franklin noel, john steele, mark lutz, paul godfread, paul hansmeier, signature
Companies: af holdings, prenda, prenda law

Judge Decides The Prenda Buck Should Stop With John Steele And Paul Hansmeier

from the another-shoe-drops dept

The latest ruling in the AF Holdings v. Navasca case has come out with Magistrate Judge Nador Vadas completely slamming Team Prenda, focusing mainly on John Steele and Paul Hansmeier, whom he thinks should clearly be directly liable for the attorneys' fees already ordered on AF Holdings in the case, but which haven't yet been paid (of course). This is in response to the hearing from a few weeks ago, in which Judge Vadas had made it clear that he wanted AF Holdings/Prenda to answer some very specific questions. Paul Duffy, representing AF Holdings, did not answer most of the questions, and the Judge noticed. He also noticed that AF Holdings did basically nothing to actually respond to most of the issues, other than trying to attack Brett Gibbs or Navasca's lawyer Nick Ranallo.

Even after the excoriating decision Judge Wright issued in Ingenuity 13, and the troublesome findings Judge Chen made in his order awarding attorneys' fees to Navasca, AF chose not to oppose the majority of the arguments in Navasca's motion for sanctions. Instead, AF introduced immaterial issues in its opposition, attacked its former counsel Gibbs, and attacked Navasca's counsel.... AF addressed the “Salt Marsh” issue and the working relationship between AF's former counsel Gibbs and its CEO/manager/sole employee Lutz.... However, AF failed to oppose Navasca's arguments that Steele and/or Hansmeier (1) manufactured Cooper's involvement in AF and forged his signature; (2) were in cahoots with the computer forensic experts who identified the alleged illegal downloaders that AF then sued; and (3) themselves uploaded the Video to Pirate Bay to induce others to download the Video. AF failed to offer any evidence to rebut Navasca's evidence establishing these points. AF's counsel attacked the affidavit of Delvan Neville, who explains how he determined that John Steele or someone with access to Steele's GoDaddy account uploaded the copyrighted works that form the basis of AF's lawsuits to BitTorrent swarms in order to induce infringement.... But AF did not actually rebut the evidence Neville presents. Instead of grappling with these admittedly difficult accusations, AF “respectfully request[ed] that to the extent the Court deems one or more to be relevant in any respect, that it identify those matters and allow Plaintiff opportunity to respond and present evidence to contradict them.” .... AF's counsel is apparently not familiar with the rules of federal procedure, or with basic principles of motion practice

That last sentence? Ouch. Later, the Judge restates the three straightforward questions he'd ordered Duffy and AF Holdings be prepared to answer, and then notes "AF chose not to present any witness at the evidentiary hearing, continuing its campaign of obfuscation."

From there, the Judge notes that Judge Wright's initial findings against Team Prenda were compelling and adopted in this case. He finds that Gibbs' testimony concerning John Steele and Paul Hansmeier was convincing, and notes that Paul Duffy presented little evidence to counter any of it. The Judge also faults Steele and Hansmeier for claiming that they haven't had "a full and fair opportunity to litigate these issues," noting that's not at all true, going back to the opportunity before Judge Wright.

The key point of all of this is to see if John Steele and Paul Hansmeier could be made personally liable to pay the attorneys' fees ordered by Judge Chen in this case, and Judge Vadas is clearly convinced. Still, he notes that he's unable to do so under some of the proposed theories. He can't use the court's inherent powers, since neither Steele nor Hansmeier technically appeared as attorneys in the case (even if Hansmeier was deposed as a corporate representative). Still, the court notes that there's tons of evidence that Steele and Hansmeier deserve sanctions, but since they're not officially part of the case, there's just no jurisdiction.

However, that doesn't let them off the hook. The court finds that it can add Steele and Hansmeier personally as debtors to the original judgment, noting that they are basically an "alter ego to the original debtor." It then goes into a fair amount of detail about why this makes sense, highlighting the evidence that Steele and Hansmeier really controlled the lawsuit, that they had a financial interest in the ruling, and, most importantly, their near total failure to refute any of the evidence against them, despite multiple opportunities.

The evidence adduced at the August 28, 2013 evidentiary hearing confirms Judge Wright's findings. AF's failure to refute that evidence with any of its own also speaks volumes. Although the undersigned ordered AF to be prepared to explain at the hearing the money trail and provide an accounting of the funds it received from copyright infringement actions or settlements, AF failed to present a witness who could do so or documents that might shed light on these issues. During the evidentiary hearing, Duffy represented to the undersigned (but did not testify) that it was his belief that the settlement or litigation proceeds were held in IOLTA trust accounts by AF's attorneys (including Prenda Law, formerly known as Steele Hansmeier). Duffy also represented as a "fact" to this court that a settlement check in another matter was written to Prenda Law.... However, no witness testified regarding whether any of the funds ever left Prenda's trust account(s). Thus, there is no evidence before the undersigned that any settlement or litigation proceeds ever reached AF.

The end result is that Vadas has sent the case back to Judge Chen with a recommendation for yet another Order to Show Cause why Steele and Hansmeier shouldn't be added as debtors to the original award for attorney's fees. In short, Hansmeier and Steele now get to argue why they shouldn't personally be liable for this debt. I'm sure their filings will be highly entertaining.

As a post script to this story, elsewhere we had noted that Mark Lutz had failed to show up at the hearing, despite Paul Duffy insisting that he knew Lutz was in town and would be present soon. A week later, Duffy finally filed with the court stating that Lutz had a good excuse, but wanted it to remain secret from the public. The court rejected two separate attempts to explain secretly why Lutz did so, and then just before Vadas' ruling filed a statement from Lutz that claims he was detained at the airport for the entire day by federal officials and unable to contact anyone, including his lawyer. He does not explain why he was detained, other than that it "was not for any actions I took at the airport and had no way of knowing that I was going to be detained on that day until it happened."

There are a number of oddities in this explanation, including the earlier claims from Duffy that he knew Lutz was apparently in town, when he wasn't, as well as the claim that he was unable to contact his lawyer during the entire 16.5 hours that Lutz claims he was detained. That's an awfully long time to be detained without access to one's lawyers. It also doesn't explain why it took Duffy a week to file anything with the court about this absence.

Filed Under: alan cooper, brett gibbs, edward chen, joe navasca, john steele, liability, mark lutz, nador vadas, nick ranallo, otis wright, paul duffy, paul hansmeier, sanctions
Companies: af holdings, ingenuity 13, prenda, prenda law

Judge To Everyone In Georgia Prenda Case: Would You All Just Please Shut Up Already

from the stop-filing-motions dept

We've been covering the various antics of Prenda's local counsel in Georgia, Jacques Nazaire, who has been representing Prenda shell company AF Holdings in the AF Holdings v. Rajesh Patel. There have been an awful lot of motions flying back and forth, as Patel's Lawyer seeks sanctions against Nazaire. Nazaire's strategy has been to more or less make himself a laughingstock, arguing that the California ruling against Team Prenda is meaningless in Georgia because of gay marriage and hackers. He's also been trying to file things under seal because commenters on this site might be mean.

Either way, every few days there's a flurry of filings back and forth, and it appears that the judge is sick of it all, angrily telling both sides to knock it off because he's actually busy with stuff that matters:

Subsequent motions repeat variants on the same allegations, whether they are titled “Motion for Sanctions” or “Response in Opposition to Motion.” (See, e.g., ECF Nos. 21, 25, 26, 30, 32, 60, 61, 62, 63, 68, 72, 74, 75, 76, 78, 79, 80.)

At this time, the court is otherwise engaged and is unable to immediately schedule a hearing on the motions. The court believes that the current motions on the table are sufficient to articulate both sides’ alleged grievances. Moreover, the court does not believe that further motions or responses would serve to meaningfully advance the litigation at hand. Therefore, plaintiff and defendant are hereby ENJOINED from filing a motion of any kind without this court’s prior approval. The court will set a hearing on all pending motions in the near future.

Basically the judge recognizes that this case has turned into a bit of an angry pissing match and wants that to stop. Probably makes sense. As amusing as Nazaire's attempts at playing lawyer have been, it would better if things actually moved forward.

Filed Under: blair chintella, jacques nazaire, mark lutz, rajesh patel, sanctions
Companies: af holdings, prenda, prenda law

Prenda's Mark Lutz Doesn't Show Up In Two Key Cases, Has A Reason But Won't Share Because People Might Discuss It

from the that's-not-how-it-works dept

So we had already mentioned in our coverage of the hearing in the Prenda/AF Holdings v. Navasca case that Prenda's Mark Lutz (who, depending on who you talk to is one or more of the following: a lowly paralegal, the mastermind behind AF Holdings, a total patsy, a clueless "corporate representative or more) didn't bother to show up, even though Prenda's Paul Duffy told the court he knew Lutz was in San Francisco and planned to attend. It took an entire week but Duffy has now filed a request with the court to explain why Lutz couldn't show up, but wishing to do so under seal, for fear that people might actually comment on the story.

Mr. Lutz attempted to travel to San Francisco, California from Miami Beach, Florida in order to testify as a witness at the August 28 hearing. HE has informed counsel for Plaintiff that, for reasons beyond Mr. Lutz’ control, he was unable to board his plane from Miami Beach to San Francisco.

Mr. Lutz thus indicates that he attempted in good faith to be present as a witness at the August 28 evidentiary, and that he wishes to explain to the Court the reasons for his absence, but the reasons are of a very sensitive nature and would expose Mr. Lutz to undue scrutiny, particularly in this case, where counsel for Defendant has artificially publicized its importance throughout the country.

You know, that's the nature of court cases. You do stuff, and the information is made public so that people can appreciate the law. Furthermore, the fact that it took an entire week for Duffy to ask the court to seal this reason seems pretty questionable as well. From the statements made by others in the courtroom, it sure sounds like Duffy lied to the court in saying he knew Lutz was in town. Lutz clearly knew long before the hearing that he wouldn't have been able to attend. A flight from Miami to San Francisco is over five hours long, and somewhere during those hours when Lutz was not on the flight, you'd think perhaps he would have called Duffy and told him he wouldn't be able to attend. Furthermore, after the hearing was over, wouldn't it be normal to expect such an explanation (or even the request to seal it) to come very soon after (as in that day or the next day) rather than wait an entire week?

Of course, this wasn't the only major Prenda lawsuit where Lutz was completely MIA. In the Patel case in Georgia, which we've written about a bunch as well, Lutz had been served by Patel's lawyer Blair Chintella and ordered to show up for a deposition in Georgia on August 21st. He didn't show. Nor did he (or AF Holdings' lawyer, Jacques Nazaire) tell Chintella that Lutz wouldn't make it. Nor did he file with the court for reasons why he shouldn't have to give a deposition. He just didn't show. Chintella has now filed for sanctions over Lutz's failure to show, which is the proper response. Suddenly Nazaire woke up and opposed the motion claiming that Lutz shouldn't have to be deposed, because people would make fun of him.

Additionally, Mr. Lutz has every reason not to appear for a deposition. The deposition is sought out, not for seeking discoverable evidence, but rather to ridicule him. Please see the attached Exhibit A which shows that all the private legal matters in this action are being displayed on a twitter account or feed for fodder.

The attached exhibit demonstrates that any new deposition of Mr. Lutz or any interrogatories or any production responses will be sought solely for the purpose of providing a good laugh for the websites such as “Popehat”, “dietrolldie” and “fightcopyrighttroll”. (See twitter feed attached as Exhibit A).

While I'm only marginally annoyed that Techdirt got left off that list (in Nazaire's last filing, Techdirt was on the list, but FightCopyrightTrolls was not...), the reasoning here is laughable on so many levels. First off, you don't file an opposition after the date of the deposition (actually many weeks later) after not showing up. You do so before. Second, this is not a "private legal matter," it's a public legal matter taking place in the federal court system, and impacting copyright law across the country. Third, Prenda seems to be admitting in this case that it's seeking to not be deposed because there might be public discussion about the case -- which is a pretty big no-no right at the time they're facing an anti-SLAPP claim in another case, arguing that they've been trying to silence public discussion of their legal actions. To have one of their own lawyers basically admit that in another court... yeah, probably not the wisest strategic move.

Oh, and as for the touted exhibit A, which Nazaire insists will prove why Lutz shouldn't have to be deposed, it's quite a filing. Basically a bunch of random tweets (including a few from myself) discussing this and many other issues, some of which have nothing at all to do with Prenda, Lutz, Nazaire or the case at hand. For example, there's a tweet from Andrew Norton about picking up his DragonCon badge and then a few from Kurt Opsahl and Blair Chintella discussing Ed Felten's recent amicus brief in the ACLU's lawsuit over NSA surveillance. What that has to do with Prenda, Lutz or Nazaire I have no idea. There are others as well, including a link to more Ed Snowden links, an article about Blizzard's Diablo III expansion Reaper of Souls (perhaps Nazaire thinks that's a commentary on Lutz as well?), a tweet about Bradley Manning's sentencing and much much more that has nothing whatsoever to do with the case, but rather with general legal news.

But even the tweets that are about Prenda/AF Holdings/Lutz are just basic public participation and discussion about a public legal matter -- discussing the legal news, like all those other tweets. To claim that this is some sort of evidence as to why Lutz shouldn't have to show up for a deposition is just wacky. That's not how the law works.

Either way, Lutz has mostly been able to remain under the radar in many of these cases, with Steele, Hansmeier and Duffy taking much of the heat. He did show up in Judge Wright's court room, but was basically ignored. And, of course, there's still the infamous "who's on first" routine that Lutz was a part of last year in Florida, but that was just the very first crack in the facade which has since come tumbling down. Sooner or later he's going to have to come out of hiding, even if it means that the public might comment on his actions.

Update: And... just as we posted this comes the news that Magistrate Judge Vadas has denied Duffy's motion, meaning that they'll have to file an explanation for why Lutz missed the hearing publicly. From the ruling:

The second ex parte application asks for permission for Mark Lutz to file an affidavit under seal addressing the issues AF Holdings was ordered to address at the evidentiary hearing, and explaining why Lutz did not appear at the hearing. The second ex parte application is denied on the ground that the August 28, 2013 evidentiary hearing was an adversary proceeding; allowing Lutz to file an affidavit would deprive defense counsel from cross-examining, which would be unjust. In addition, if Lutz wanted to explain his absence from the hearing, and AF Holdings’ failure to address the issues the court ordered it to be prepared to address, he should have done so much earlier.

Filed Under: blair chintella, deposition, jacques nazaire, joe navasca, john steele, mark lutz, paul duffy
Companies: af holdings, prenda, prenda law

Ex-Prenda Lawyer Wonders If Team Prenda Believes Their Own Lies After Laughable Hearing

from the keep-trying dept

Earlier this week, there was yet another hearing dealing with one of the many courts investigating the actions of Team Prenda. This was in the Navasca case up in San Francisco, where some sanctions have already been issued, and more may await. Judge Edward Chen handed off this stage of the case to Magistrate Judge Nador Vadas, who recently demanded some actual answers, telling "AF Holdings" (one of the many Prenda shell corporations) to show up ready to answer some very specific questions. That's not quite what happened.

The day started off with a laughable declaration from John Steele, in which he stuck with his plan of deny absolutely everything. This focused on denying every bit of Delvan Neville's expert analysis showing a high likelihood that John Steele and Paul Hansmeier were themselves seeding the files they later sued over, via The Pirate Bay. Neville's analysis is detailed, thorough and hard to argue against. Steele and Hansmeier, along with Paul Duffy (the official "named" partner of Prenda) have been insisting that there is nothing to Neville's filing, and keep insisting that he's a nobody, rather than an expert.

I note initially that Mr. Neville is a graduate student; that he has not disclosed why he prepared his declaration.... whether he will successfully complete whatever course of study he is now engaged upon as a "graduate student;" whether he meets any of the rigorous standards applicable to an expert witness in a Federal court proceeding in a Federal court proceeding. (sic)

Upon my review of Mr. Neville's declaration, I find the claims contained therein pertaining to me to be completely untrue and without any basis in fact.

Mr. Neville asserts I may have acted to "seed" a BitTorrent "swarm" involved in the digital piracy of copyrighted works. Those assertions (perhaps better described as suspicions) are categorically false. I have never acted to "seed" a BitTorrent "swarm," and would not know how to do so if for some reason I would desire to try.

It goes on like that. Of course, this is all pretty laughable, given the mountains of evidence that connect Steele to the seeding, including Comcast revealing that the IP address associated with the seeding belonged to Steele Hansmeier, and the information provided by GoDaddy involving John Steele impersonating Alan Cooper and Mark Lutz. Those both came out in a different Prenda case, but showed up in this particular hearing.

Only Paul Duffy from Team Prenda showed up to the hearing (though he showed up late) and while it was promised that Mark Lutz was "in town" and would be there, he never showed up at all. The star of the show was former Prenda team player Brett Gibbs, who, after realizing that Hansmeier and Steele had thrown him under the bus, started finally revealing the truth. Hansmeier and Steele have continued to insist they had little oversight over Gibbs, but at the hearing he produced phone records showing somewhere around 4,500 minutes of phone calls with Hansmeier. He was later asked to identify the recordings on those calls, and said they were John Steele's voice -- which Duffy weakly objected to.

After Neville testified about the inner workings of BitTorrent, it was Duffy's turn, and many people expected a full cross-examination of Neville. Given that Duffy, Hansmeier and Steele have been insisting that Neville's claims are a complete joke and wouldn't stand up to any scrutiny, you'd think they'd relish a chance to have him on the stand. But they more or less ignored him. Instead, Duffy spent a ridiculous amount of time tying himself into knots with an astoundingly weak attempt to pin the blame on Gibbs himself, focusing mainly on procedural issues. The two points he seemed to focus on: that Gibbs never actually saw the infamous "Salt Marsh" signature and that Gibbs never officially checked to see if the Steele Hansmeier law firm was dissolved or purchased after Steele and Hansmeier told Gibbs they'd be doing business as Prenda going forward.

Neither point makes much sense, nor does it really matter. On the signature front, Gibbs has already stated, repeatedly, that he'd asked about Salt Marsh and Hansmeier insisted it was legit. If there was a procedural error, it was trusting his boss (and friend and former roommate). Either way, this could only come back to bite Duffy, since it was Duffy's law firm that Gibbs supposedly worked for, and sooner or later this comes around to lawyers technically working for Duffy's law firm violating procedures. As for the status of Steele Hansmeier, that seems like a pointless tangent.

Thankfully, it appeared that Judge Vadas was pretty aware of what was going on. While not as outspoken as Judge Wright, he made it clear that he wasn't buying what Duffy was selling:

At this point, Magistrate Judge Vadas broke in to ask Duffy a question. "Counsel, where are we going with this?"

"Counsel has the obligation under federal and local rules to maintain the original signature and he [Gibbs] didn't do it!" said Duffy. "He's trying to blame other people who weren't on the case. Any liability should fall upon him, as the filer."

Duffy went on. A minute later, Vadas broke in again, with the same question, asking where the line of questioning was going. Duffy was trying to show that Gibbs had changed his story as a result of a "deal" with another defense attorney in Florida, to drop sanctions against him.

"It strikes me from what I have heard so far that there's a chain of command here, and that Mr. Steele and Mr. Hansmeier were managing partners of the firm that became Prenda Law," said Vadas. "This counsel and other counsels were contract lawyers doing the heavy lifting in whatever states these lawsuits were being filed... Isn't that a fair analysis?"

Some have argued that from Duffy's performance, he appears like he's in way over his head. Of course, given all of the evidence piling up against him and his colleagues, I'm not sure how he could do any better.

Still, the best line of the day may have come after the hearing was over, when reporter Joe Mullin from Ars Technica chased down Gibbs in the hall and asked for an interview:

"I'm just trying to get on with my life," he said. "I'm pretty overwhelmed by this. There just needs to be some truth in this, in the whole matter, and that's why I came today. I don't know if they believe their own lies, at this point."

To be fair, Gibbs was a big part of that lying machine at some point, even if he was just taking orders from Steele and Hansmeier, but kudos to him for finally coming clean.

Filed Under: alan cooper, brett gibbs, delvan neville, edward chen, john steele, mark lutz, nador vadas, paul duffy, paul hansmeier
Companies: af holdings, ingenuity 13, prenda, prenda law

When Even Totally Bogus Copyright Threats Over Court Documents Comes Close To Shutting Down A Site, Something's Broken

from the not-universally-reviled-enough,-it-would-appear dept

The "c" in "copyright" still stands for "censorship," at least when wielded by aggrieved entities with limited retaliatory options. Torrentfreak is reporting that Comcast has sent the site a cease and desist order over last week's article on Prenda's honeypot operations.

[On] Monday we learned that Comcast was not happy with our coverage. Through the brand protection company Cyveillance they sent a cease and desist letter for an alleged copyright infringement, demanding that we take the article offline, or face legal action.

The threats are clear. If we fail to comply with the takedown notice within five days Comcast will file a lawsuit seeking immediate injunctive relief, compensatory damages, statutory damages, punitive damages, attorneys’ fees and costs of the suit.

The "intellectual property" in question is the public court filing, according to Cyveillance. (The actual C&D letter doesn't specify what's been infringed.) Torrentfreak told Cyveillance that public court filings are public domain (which may not be entirely true -- court documents filed by private parties (as opposed to the courts themselves) probably are not technically public domain, though there's a pretty strong argument that most uses of them are fair use -- and especially when it comes to use in reporting and commentary).

After being informed of this fact, Cyveillance told Torrentfreak that Comcast said to "hold off" on removing the post for the time being, but that news came far too late as Torrentfreak's host was already threatening to pull the plug.

Meanwhile, the situation further deteriorated when we learned that our hosting provider LeaseWeb received the same cease and desist notice. LeaseWeb alerted us to this problem on Tuesday and stated that our IP-address would be blocked if the issue was not resolved within 24 hours.

With Torrentfreak's site on the line, Comcast and Cyveillance then decided to turn unresponsive. Several hours later, Comcast finally issued a statement.

Update 7pm CET: A Comcast spokesperson responded to an inquiry we sent to the company’s lawyers:

“[I] am replying to let you know that the cease and desist was sent in error, and you may disregard it. We apologize for any confusion this may have caused.”

Oh, one of those common "please take down our copyrighted content or prepare to be sued" mistakes. We've all made those. I'm pretty sure the only "error" was underestimating the pushback.

So, all's well that ends well, I guess, except for that fact that Comcast's "error" nearly took a site offline and gets to walk away from the experience unscathed. And because it made it through with little more than some public embarrassement, it won't learn a damn thing.

Filed Under: copyright, dmca, takedown, torrentfreak
Companies: comcast, cyveillance, prenda

Courts Start Demanding Actual Answers From Team Prenda

from the and-on-and-on dept

The saga of Team Prenda continues, as courts in two of the Prenda cases we've been following have shown that they're getting pretty tired with Team Prenda's attempts to dance around the issues. First up, we've got the various AF Holdings cases up in Minnesota. If you don't recall, these cases had been dismissed, but after the court learned about some of Team Prenda's antics, it reopened the case with an eye towards determining if Team Prenda was guilty of fraud on the court in coaxing settlements out of people on a faulty or illegal basis. Amusingly, late last week, Paul Hansmeier, sticking to Team Prenda's ridiculous strategy of "whenever we're completely backed into a corner, charge!" filed a notice claiming that AF Holdings intended to reopen the original cases. That is, he's now claiming that because magistrate judge Franklin Noel is investigating them for fraud in the original cases, they now want to continue to "sue" people for infringement to show how "legitimate" their cases really were. The notice is worth reading, mainly for the comedic value. Hansmeier claims that Alan Cooper is mentally unstable and was trying to extort money from John Steele. Also, that there was no forgery of Cooper's signature, but rather Cooper "repudiating" his association with AF Holdings.

Of course, the main reason for making this filing isn't to reopen the cases, or to make laughable claims about Alan Cooper, but rather this:

However, Plaintiff has reached the outer-limits of what it can learn without the coercive power of formal discovery. As such, Plaintiff respectfully requests the Court to issue an order scheduling a Rule 26(f) conference so it resolve this matter as quickly as possible.

Basically, it's Paul Hansmeier asking the court for a fishing expedition against Cooper and his lawyer Paul Godfread. It's hard to see this as anything more than an attempt to be a nuisance.

However, it seems highly unlikely that magistrate judge Noel is buying anything that Hansmeier is selling. Instead, his latest order shows that he's getting pretty damn tired of Team Prenda's runaround. It makes no mention of Hansmeier's filing, denies the local counsel Michael Dugas' request to be dropped from the case (noting that he signed the forged papers), repeats the findings of Judge Wright in California, and then orders AF Holdings/Team Prenda to explain why Judge Wright's findings shouldn't apply equally to these cases:

The plaintiff shall file a memorandum of law on or before August 26, 2013 showing cause as to why Judge Wright's factual findings are not binding against it in these cases under the common law doctrine of issue preclusion. See, e.g., Bechtold v. City of Rosemount, 104 F.3d 1062, 1066-67 (8th Cir. 1997) (issue preclusion appropriate under Minnesota law if (1) the issues are identical; (2) the prior adjudication ended with a final judgment on the merits; (3) the plaintiff was a party to the prior adjudication; and (4) the plaintiff was given a full and fair opportunity to be heard on the adjudicated issue).

The Clerk of Court shall correct the docket to reflect that Mr. Michael K. Dugas remains counsel of record for the plaintiff. Although he filed a notice of withdrawal and substitution, his withdrawal was not effective upon filing under Local Rule 83.7(b) because it would delay the progress of this case. He signed the complaint to which the forged documents were attached. If Mr. Dugas wishes to withdraw as counsel of record for the plaintiff, he must proceed in accordance with Local Rule 83.7(c) and establish good cause to do so.

In other words, Team Prenda's can't just ignore Judge Wright's ruling here, and it certainly sounds like Judge Noel has no time for Hansmeier's plans to play discovery games.

Meanwhile, back in the Navasca case in Northern California, it appears that the recent sanctions against Team Prenda that Judge Edward Chen awarded have been ignored by Team Prenda, and a magistrate judge in that court, Nador Vadas, would like to know why. Oh, that's not all Judge Vadas would like to know. It appears that Judge Vadas is now taking a special interest in the now-infamous Paul Hansmeier deposition from this case, which was one of the key documents that convinced Judge Wright that Prenda was up to no good. Judge Vadas has some questions he'd like AF Holdings to answer, and they are the kinds of questions that Paul Hansmeier, Paul Duffy, John Steele and Mark Lutz probably don't want to answer about who actually is behind AF Holdings and the various "trusts" such as Salt Marsh:

Hansmeier testified that AF Holdings was owned by a trust, but he could not testify about the name of the trust.... In a May 2, 2013 filing, Mark Lutz, who identifies himself as someone who “manage[s] various adult content related companies, including AF Holdings LLC,” declared that “Salt Marsh is the name of the trust that owns AF Holdings”.... At the hearing, AF Holdings should be prepared to identify the name of its owner and any entity or person having a financial interest in the outcome of this case, beyond Salt Marsh.

AF Holdings should be prepared to explain why it represented that there were “no known persons, associations of persons, firms, partnerships, corporations (including parent corporations), or other entities (other than the parties themselves) that may have personal or affiliated financial interest in the subject matter in controversy, or any other kind of interest that could be substantially affected by the outcome of the proceeding other than the parties.” Doc. No. 2 (Certificate of Interested Entities).

AF Holdings should be prepared to explain why Paul Hansmeier was designated as its 30(b)(6) deponent instead of Mark Lutz.

Paul Hansmeier was unable to testify about “the exact mechanisms by which the money goes from” to AF Holdings from the law firms that represent it.... AF Holdings should be prepared to explain these “exact mechanisms” at the hearing, and also should be prepared to provide an accounting of the funds it has received from persons it has sued or threatened to sue for copyright violation based on allegedly illegal downloading of its adult titles.

Those all seem like important questions. Questions that would be easy to answer if there were nothing nefarious going on, but which Team Prenda has avoided answering in any meaningful way for months. The hearing at which they need to have such answers ready will be on August 28th. I imagine it will be quite interesting.

Filed Under: alan cooper, franklin noel, joe navasca, john steele, mark lutz, michael dugas, nador vadas, paul duffy, paul hansmeier
Companies: af holdings, prenda, prenda law

Comcast Confirms That Steele-Hansmeier Controlled IP Address Used To Seed Content

from the but-of-course dept

We already covered the filing from Blair Chintella highlighting the audio evidence that John Steele had impersonated both Alan Cooper and Mark Lutz, but there was a second bit of evidence in there that's just as damning. It appears that a subpoena sent to Comcast has more or less totally confirmed that it was John Steele or an associate who uploaded the films. Delvan Neville's evidence on this point was pretty convincing, with the one piece lacking being who actually had control over the key IP address that was involved in the activities.

Even though there was clear evidence that John Steele controlled that IP, one of the exhibits is Comcast confirming that 75.72.88.156 was in fact assigned to Steele Hansmeier PLLC, the former law firm of John Steele and Paul Hansmeier. Now, the few remaining defenders of Steele and Hansmeier may try to claim that we have noted that an IP address alone proves little, but this is not the IP address alone. There is so much more evidence around that, and the concerns about an "IP address alone" tend to be with it identifying the wrong random person. The chance that someone uploaded these films before anyone else had and somehow magically known to spoof the very IP address of the law firm that would then begin the copyright trolling process around those films is so close to zero that it's zero. The evidence at this point is indisputable: John Steele or someone working with him uploaded the films. And, now there's evidence that he flat out pretended to be Alan Cooper and Mark Lutz. People who know John Steele's voice have confirmed that it is him. Steele, Hansmeier and Duffy's angry denials about all of this keep looking worse and worse.

Meanwhile, Nazaire has wasted little time in responding to all of this by... well... ignoring nearly all of the evidence above. At least this time he, or someone else, figured out how to change the metadata on the PDF to actually say "Jacques Nazaire" instead of "Paul Duffy" (which suggested the filings were actually written by Duffy, who is not admitted on this particular case -- and whom Nazaire has pretended to distance himself from). However, they haven't quite figured out the metadata stuff completely. Andrew Norton points out that the metadata still points to the same weird Chinese language PDF producer that Duffy has used, rather than the iT3XT that Nazaire had been using. Oops.

The rest of Nazaire's response is pretty funny as well. The crux of Chintella's argument against Nazaire was that he violated the rules with his request to stop the discovery by failing to have the required "meet and confer." Nazaire argues that his brief emails with demands should suffice because an actual phone call would be taped and played on the internet, where he might be further embarrassed:

It has been alleged that a good faith effort has not been made to meet and confer. The facts however demonstrate that, on August 3 and August 4, a good faith effort was made to have the excess discovery demands in this case withdrawn. Because of the unnecessary publicity garnished by press releases in this case (See Exhibit A), it is difficult for plaintiff's attorney to call to discuss confidential and privileged matters regarding this case. The telephone and live conversations will more than likely be taped and played on the internet. The confidential matters discussed via email will more than likely be posted as a publicity campaign on the internet. Given the environment that has been created, the plaintiff has made the best effort possible to confer regarding discovery. Plaintiff has not issued any press releases or tweets regarding this matter

I'll leave it to the lawyers out there to discuss what an absolutely, stupendously ridiculous claim that is to make. Either way, we'll see what the judge makes of all of this, but the evidence is piling up against Team Prenda, and the hilarious attempts to tap dance out of it keep getting more and more ridiculous.

Filed Under: alan cooper, blair chintella, evidence, ip address, jacques nazaire, john steele, mark lutz, paul duffy, paul hansmeier
Companies: af holdings, prenda, prenda law