Charles Carreon Keeps Digging; Now Targeting Lawyer Who Is Seeking Legal Fees [Updated]

from the digging-digging-digging dept

If you haven't had your Charles Carreon fill in a while, here you go. Last we'd heard, despite promising to go after a parody blogger who was mocking Carreon (and threatening the blogger's employer), when that blogger filed for declaratory judgment, Carreon first avoided being served, and upon finally being served almost immediately capitulated and promised not to sue. However, what Carreon did not apparently realize was that he left himself open to having to pay the legal fees from the other side, which has led to an ongoing fight in which the lawyers, Paul Levy and Cathy Gellis, are seeking upwards of $40,000 -- a number that seems to keep going up the more and more Carreon tries to fight their every move.

The latest is that Carreon has asked the court for a 120-day extension in responding to Levy's motion for fees. Asking for an extension is not uncommon, and it's often granted -- but the reasoning here is a bit out of the ordinary (which, perhaps, should not be unexpected given who is involved). Rather than citing significant other cases or workload that might get in the way, or highlighting why the basic requirements in responding to the motion require more time, Carreon seems to be trying to smear Paul Levy and his employer, Public Citizen (full disclosure: Levy is a friend, and has, at times, represented this site against threats). Much of Carreon's argument is this bizarre conspiracy theory suggesting that Levy trolls the internet seeking cases where he can file for declaratory judgment, and then tries to cash in on legal fees. He cites two (two!) cases where Levy has, in the past, sought legal fees and lost. And then suggests he needs more time to research all of this more, including seeking discovery from Levy and finding groups to file amicus briefs ("friend of the court" briefs) on his behalf.

To put it mildly, this is crazy. Carreon seems to be trying to turn a case in which he was clearly the initial bully, and got called on it, into one where he tries to sift through documents concerning the lawyer who called his bluff. Basically, it's back to Carreon's game plan throughout this mess: when in trouble, keep digging -- and, as part of that digging, accuse everyone against you of somehow doing something nefarious. In the past, this has included accusations against bloggers and press who were covering his saga (including threats to sue some of them), and now it's extended to threats to drag Levy into a time consuming and meaningless discovery process. Levy filed a short response, noting that he has no problem giving Carreon a 30 day extension, but going on a fishing expedition via discovery makes no sense as they're just trying to settle whether or not Carreon needs to pay legal fees. Furthermore, the search for amici to support him is no excuse for asking for an extension.

Carreon then responded not by countering any of the legal points that Levy raised concerning the extension or discovery, but simply by playing a weird game of "gotcha" in which he wants to call the court's attention to the fact that, in his reply, Levy decided not to even bother responding to Carreon's silly assertions about Levy deliberately trolling the internet for cases where he could seek legal fees (based on the two cases Carreon found where Levy sought legal fees).

Plaintiff’s counsel’s silence regarding the judicial rebuffs his arguments suffered in the Eleventh and Fourth Circuits speaks volumes.

Mr. Levy is simply engaging in a form of forum shopping, eagerly seeking and recruiting clients who create gripe sites to file preemptive declaratory relief actions in various venues, hoping to coerce settlements from vulnerable defendants, or perhaps to lead some court into error by failing to disclose his prior defeats on the very same issue in other jurisdictions

Of course, this ignores a much more plausible scenario (one that happens to be true). As is Public Citizen's charter, Levy and others in the Public Citizen litigation group have a core focus, which is that the group "specializes in cases involving regulation, consumer rights, access to the courts, open government, and the First Amendment, including Internet free speech." Basically, they look for cases that help promote the public good on those particular issues. As such, they are certainly one of the leading groups that people reach out to when they are threatened unfairly. And, based on that, it's not surprising that, at times, this leads to cases in which it is appropriate to seek legal fees. Sometimes they will get those legal fees, and sometimes they will not.

What that has to do with whether or not Carreon should pay up legal fees for his actions is anybody's guess.

Oh, and I think that we (and a few other sites still talking about Carreon) get a bit of a backhanded mention in this one:

Defendant is not a public figure, no issue of public importance has been addressed, and the matter has not been found newsworthy except in online publications desperate for pseudo-legal content.

Are we an "online publication desperate for pseudo-legal content"? We have more than enough content, honestly, and I could do without any more Carreon filings, but he just keeps digging, so the topic just keeps flowing.

Oh, and despite Carreon's claims that Levy is all too eager to jump into these kinds of cases, filing declaratory judgments and then seeking legal fees, I will note that my own personal experience with Levy was that he has, multiple times, steered me away from going that route. If his ultimate goal was to file as many such cases as possible, I doubt that would be the case.

Update: And... between me writing this story and publishing it, the judge has quickly rejected most of Carreon's arguments, giving him 60 days as an extension but saying no to the discovery request, saying simply:

Defendant’s request for extensive discovery would amount to a mini-trial on plaintiff’s motion for attorneys’ fees. Such extensive discovery is unnecessary and a waste of resources.

"Unnecessary and a waste of resources" seems like a phrase that can be applied to an awful lot of Charles Carreon's recent activities.

Filed Under: carreon effect, charles carreon, legal fees, paul levy

Lawyers Going After Charles Carreon Increase Their Request To $40,000 In Attorneys' Fees Owed

from the get-some-popcorn dept

Last week, we noted that the case of a parodist blogger against Charles Carreon concerning Carreon's threats to wait the blogger out and sue at a later date was mostly over, after Carreon effectively threw in the towel, and admitted that his legal threats were completely empty and he wouldn't pursue the blogger. However, we noted there was still the issue of attorneys' fees. Carreon argued that his settlement offer included an offer of $750 to cover the filing of the lawsuit, and that by accepting it, any other fees were then out of discussion. The public interest lawyers representing the blogger, Paul Levy and Cathy Gellis, pointed out that's not how this works, and noted that they were owed closer to $5,000. And, now, they're ratcheting that up. In a new filing, highlighted by Adam Steinbaugh, they're explaining why Carreon should be on the hook for $40,115, mostly due to Carreon's own actions.

Moreover, although the "groundless or unreasonable" test is an objective one, defendant's conduct shows that he was fully aware that he had no basis for claiming trademark infringement. He refused to waive service of summons because, he said, he did not want to have to defend the litigation, and indeed he thumbed his nose at the efforts to serve him, saying that he was deliberately not going to "expose [him]self to service." Once service was effected, he refused to pay the expenses of service, supposedly because he was going to file a motion to dismiss the complaint, forcing plaintiff file a motion seeking an award of a few hundred dollars in expenses; plaintiff also sought an award of attorney fees for having had to file this motion. And then, when defendant saw that his escape routes had been cut off— that he had been served, and that plaintiff was not going to let him out of the case—he simply dropped his trademark claims unconditionally and offered judgment. Mr. Carreon's course of conduct speaks volumes about his evident recognition of the fact that his claims were meritless; he provides no reason for believing that his decision to drop them was occasioned by anything that he had learned about the merits during the course of the litigation.

Finally, although the groundlessness of the infringement and cybersquatting claims is alone sufficient to support an award of attorney fees under Ninth Circuit precedent, in circuits with a higher standard for finding cases exceptional, a litigant's oppressive conduct is one of the factors considered in support of fee awards. ... Although plaintiff's counsel tried to steer Mr. Carreon away from his threats of litigation, Mr. Carreon responded by ramping up his threats, trying to put the blogger in fear of significant financial liability by, for example, warning that he would seek statutory damages of $100,000... and would employ counsel instead of proceeding pro se for the precise purpose of running up the blogger's liability for attorney fees... he also boasted of his reputation for "litigating appeals for years." ... Once the litigation was filed, and while he was refusing to submit to service, he sent a letter to Mr. Recouvreur's employer,... which might have caused trouble at work for Mr. Recouvreur, by threatening to hold the employer liable for the conduct of its employee, and in any event to impose invasive document preservation requirements.

And after Mr. Carreon was finally served, he tried to threaten his way out of being held responsible for his baseless threats by making an additional threat to sue the employer of plaintiff's lead counsel, unless counsel induced his client to settle on the terms that Mr. Carreon demanded.... Mr. Carreon's decision to offer judgment giving plaintiff his complete success on the merits is perhaps an item in Mr. Carreon's favor in judging his litigation conduct, but in its entirety Mr. Carreon's litigation conduct was sufficient oppressive to form yet another factor in support of a finding that his case was exceptional.

Steinbaugh also notes a few interesting points. There's an indication that the plaintiff may also go after Register.com for exposing the parodist's name. Furthermore, Steinbaugh points out how ridiculous it is that Carreon complains in his last filing about people online wishing him ill-fate, and saying that he will "never inveigh against anyone in the public forum by deriding their character as others have mine." That, of course, is funny, given that his wife, who once claimed that I was a "nazi scumbag" seeking to do "to Charles what they did to Jewish lawyers in Nazi Germany." Uh huh. And it's not like Tara and Charles have calmed down in this department lately. Steinbaugh points out that Tara Carreon is now arguing that Matt Inman is partly responsible for the Newtown massacre. And then there's Carreon's Rapeutation.com site. The idea that Carreon somehow doesn't deride others' character in public isn't supported by the facts.

Separately, Paul Levy has blogged about the latest, providing more context, in which he also notes that Carreon's claims to the court that he never intended to take the blogger to court may actually make things much worse for Carreon, in that it may have opened him up to legal consequences from other venues, including Walgreens, the blogger's former employer, which Carreon threatened to drag into the lawsuit (which he now claims he never intended to file):

In trying to persuade me not to pursue the claim for attorney fees on the merits, Carreon claimed that the suit for a declaratory judgment was altogether unnecessary because, he claimed, he never would have sued for a trademark violation; if we had only waited, he said, we would have seen that.

If, in fact, Carreon never intended to pursue his threats to sue the blogger, that is perhaps the worst of all, not only because it means that Carreon has probably cost himself a great deal of reputational and financial harm for having a big mouth, but also because it puts him at significant risk of other legal consequences. For example, in addition to threatening to sue Register.com, Carreon threatened to sue Walgreens, the blogger's employer when the case began, demanding an extensive preservation of electronic records. We could not help thinking at the time that his real purpose was to try to drive a wedge between the blogger and his source of employment. If Carreon never intended to file such a claim, the blogger may have a claim for intentional intereference with contract, and perhaps Walgreens has a claim of its own for the expenses incurred in complying with potential data preservation obligations relating to an intentionally empty threat.

Oh, also, there may be ethics issues given how Carreon obtained the blogger's name, claiming it was for legal purposes, even though he now claims he never intended to file a lawsuit:

Moreover, if Carreon's current statement about his intentions last summer is true, there may be ethics consequences. After all, without having to file suit, he managed to intimidate the blogger's domain name registrar into placing the blogger's name into the public WHOIS record where other members of the public were able to see it; Carreon himself took advantage of the disclosure to feature the blogger's name publicly on his "rapeutationist" blog. And yet, Carreon now claims, he never intended to file the lawsuit at all.

The Federal Rules of Civil Procedure, Rule 26(b)(5) and the California Code of Civil Procedure, section 2031.285, both require a party who receives information that has been the subject of a claim of privilege to sequester the information pending a final ruling on the privilege. This rule has been applied to information obtained about the identity of an anonymous Internet speaker, and both an ABA Formal Opinion, and ethics rulings in some states, have taken the position that a violation of the obligation to sequester can constitute an ethical issue. Consequently, Carreon's insistence that he was never actually going to institute legal proceedings to vindicate his claim of trademark infringement outs him at risk of renewed disciplinary proceedings by the California and Oregon bar authorities.

Finally, on the point of whether or not further action will be taken against Register.com, as mentioned above, Levy notes that he's been trying to talk to Register.com about their policies, and that's going to determine the next steps:

Carreon's contention that he would never have followed through on his threats if legal action also reflects poorly on Register.com's craven release of the blogger's identity, albeit temporarily. While the case against Carreon was pending, we put Register.com on notice of a possible claim, perhaps a class action claim, for advertising (and charging extra for) a private registration service without providing any real safeguards against spurious claims demanding disclosure of the registrant's identity. We have tried to discuss with that company's counsel how they will handle cases like this differently going forward, and have postponed legal action to see whether such talks could be fruitful. But, to date, it has never been convenient for Register.com's representative to actually discuss its policies and procedures.

Now that the merits of the Carreon case have been concluded, we will have to see whether it is possible to avoid litigation on that aspect of the problem.

The case may be ending, but there are still plenty of loose ends.

Filed Under: attorneys fees, cathy gellis, charles carreon, ethics, paul levy

Wikipedia Threatens Artists Over Domain Name Of Art Project Involving Wikipedia

from the openness? dept

First up, a disclosure: back in college, Nathaniel Stern, one of the main characters in this post, was a very close friend of mine -- someone I hung out with a lot. After college, though, he and I mostly lost touch -- other than a random email or Facebook message back and forth. The last time I heard from him, in fact (and the first time I'd heard from him in at least two years), was when he sent out an email alerting me to the fact that he (along with one other artist) had launched a project called WikipediaArt. The idea was to create an art project on Wikipedia, but which stayed within Wikipedia's rules. Nat's become a pretty well-known artist over the years, often experimenting in new media art, and the project itself struck me as quite interesting, though I doubted it was even remotely possible, given the way Wikipedia works. You knew that it would get deleted. However, I never expected the folks behind Wikimedia to go legal on them.

But, that's what's happened.

Both the EFF and Paul Levy (who has agreed to represent Wikipedia Art) have alerted us to the news that Wikipedia is demanding the artists hand over their domain by threatening legal action. As the EFF and Levy point out, this is a rather surprising move by the Wikipedia foundation, who should know better than to make a bogus demand on a URL just because it includes Wikipedia's name in it:

Wikipedia should know better. There is no trademark or cybersquatting issue here. First, the site is entirely noncommercial, which puts it beyond the reach of U.S. trademark law. Moreover, even if U.S. trademark laws somehow reached this noncommercial activity, the artists' use of the mark is an obvious fair use. Wikipedia Art uses the "Wikipedia" mark to refer to the project: a critical comment on Wikipedia and creativity. The disputed site describes the project, provides links to media coverage of the project, and so on. It does not use any more of the Wikipedia mark than need be; for example, it doesn't even use the Wikipedia logo. Simply put, the site does not purport to be, nor does it look anything like, Wikipedia and the artists have done nothing to suggest Wikipedia endorses their work. Finally, the creators are engaging in precisely the kind of critical speech sheltered by the First Amendment.

While the EFF does note how odd it is for Wikipedia to be taking these actions, it leaves out the fact that Wikipedia is represented by Mike Godwin, (of Godwin's Law fame), who was also the first EFF in-house lawyer and absolutely should know better than this. Hopefully Godwin and Wikipedia come to their senses, apologize and back down.

Filed Under: fair use, mike godwin, nathaniel stern, paul levy, trademark, wikipedia